
    Hadley v. Tankersley.
    The declaration in the 25th section of the tax law of 1840 (Hart. Dig., art. 3007) that the tax deed should be good and effectual both in law and equity, must be regarded as giving no special sanction to tho conveyance beyond that derived from the general principles of law. (But, queref If the doctrine had not been firmly established ) And hence, notwithstanding that provision, it is necessary for a plaintiff claiming under a tax sale mado by virtue of lliat law to allege and prove that all the prerequisites were performed.
    Appeal from Harris. Suit by the appellant against the appellees for partition of a eerlain tract of laud. The plaintiff claimed title by virtue of a sale for taxes. His deed was made an exhibit, was dated the 27lh day of November, 1841, and recited that “Whereas the said Magnus T. Rogers, as sheriff aforesaid, and, as such, being the collector of public-taxes, by virtue of an execution issued by John Fitzgerald, a justice of the peace, against the estate of John W. N. A. Smith, for his taxes for the year 1S40, being'for the sum of one hundred and twenty-three dollars and six cents,” &c., &c. There were no allegal ions in tlie petition of any facts anterior to the deed. A demurrer to the petition was sustained.
    
      
      T. B. J. Hadley, for himself.
    It will be neediess to say I base my claim on the 25th section of the act of 1840, which provides “that every sheriff who,
    as tax-collector under tiiis act, shall sell any real estate to satisfy any tax imposed by this lav?, shall make and execute a deed of conveyance immecliately, which deed shall he good and effectual both in law and equity.” It would have been difficult if not impracticable for Congress to have adopted a mode of expression by which they could more fully and emphatically declare that the deed of the sheriff per se, and independent of all other matters, should pass the title of the delinquent tax-payer, than that which has been adopted by them. And the difficulty in arguing it is that which presents itself in reasoning about any self-evident truth ; that is, that there is nothing more clear to which we can refer for proof. Here the Congress have assumed to themselves the right to declare, and have declared, the properties of the deed. They have said it “ shall be ” in the imperative. Not that it will be if the revenue officers have complied with the direction of the statute in making the assessment and sale, hut asa deed of conveyance it shall be good. No objection shall be made to it for want of form or substance. And, not content with that, it is added it shall be effectual; that is, it shall luive effect. Now, I ask, how can it have effect or be effectual if it passes no title F If it passes nothing it certainly has no effect. It can only be effectual by passing the estate, by being operative, proprio vigoro, to pass the estate. Not content with this, it is added, “ both in law and equity.” Can it be effectual in law, and not be held effectual in a court of law to pass the legal estate? Can it be effectual in equity without being in equity held to pass the equitable estate? The mind can conceive of no mode by which the deed can bo “good aud effectual in law and equity” but bypassing the estate legal and equitable.
    For the court to hold that the party claiming under the deed must show that all the preliminary steps were duly takeu by the assessor and sheriff in assessing the taxes and'iu making the sale, they must virtually read the statutes thus: “Every sheriff who, as tax collector under this act, sliall’sell any real estate to satisfy any tax imposed by this law, shall make and execute to the purchaser or purchasers thereof a deed of conveyance immediately, which deed shall be good and effectual, both in law and equity, if the assessor and said sheriff shall in all things have complied with the provisions of this act in making the assessment and'sale, and not otherwise.”
    Now, this would not, be to construe the statute as enacted by Congress, but by judicial legislation to interpolate the proviso, which requires acts preceding the salo aud deed aud on which its validity would be made to depend, or to strike out a sentence from the act not repugnant to any of its provisions.
    If words go beyond the intention, it is with the Legislature to make the alteration. In Hex v. Barnham, 8 B. & C., Lord Tendorden says : “Our decision maj', perhaps, in this particular case, operate to defeat the object of the statute, but it is better to abide by this conveyance than to put upon it a construction not warranted by the words of the act, in order to effect what we may suppose to be the intention of the Legislature.” And in Nolly v. Buck, 8 13. & O., 1G4, he says: “The words may probably go beyond the intention, hut if they do it resls with the Legislature to make an alteration. Tire duty of tlm court is only to construe and'give effect to the provision.” In 1st T. R., 52, Ashiiuest, J., says it is safer to adopt what the Legislature have actually said than to suppose what they meant to say. The same doctrine may be found in 2d Institutes, 103. In Rex v. Turney,'2d B. & A., Abbott, Ch. J., says: “ 1 liave often lamented that in so many instances the court has departed from the plain and literal construction of the statutes. 1 feel bound to construe these acts of Parliament according to the plain and popular meaning of their words.” And see the opinion of all the judges in the case of Brandling v. Barrington, O’ B. & O., 475.
    It is a maxim and plain common sense that where there is no ambiguity there is no construction. In the case of the Board of Land Commissioners v. J. H. IVeede, Dalham, 301, our Supreme Court expressly recognizes and asserts the rule, “that whore a law is plain and unambiguous, whether it be expressed in general terms, the Legislature should be understood to mean what they have plainly expressed, and consequently no room is left for construction.” And when the intent of a statute is plain nothing is left to construction. Now, where tiie Legislature have plainly said “the deed shall be ” good and effectual, both in law and equity, there is nothing'unambiguous, and consequently no room for construction. There are no words which will bear the sense contended for in support of the demurrer, which is that it shall only be good and effectual In law and equity if the assessor and sheriff have duly complied with every direction given them in tiie act. In these words “the will of the Legislature is obvious,” and in such a caso our Supreme Court, in tiie ease referred to, says “all tiie laws and rules of construction by analogy or intendment cease.” Lord Coke lays it down “that all acts of Parliament shall be taken by a reasonable construction to be collected out of the words of the acts themselves according to tiie true intent and meaning of tiie makers.” (5 Bep., p. 0.) And again, “ the good expositor,” sajrs Lord Coke, “ makes every sentence have its operation. lie gives effect to every word. He does not construe it so that anything shall he vain or superfluous, nor yet make exposition against express words.” (Barham’s ease, 3 Bep., 117.)
    The Congress of Texas, in the act of 1840, provides for the raising of a revenue by direct taxation, and in that act they carefully direct tiie revenue officers in every step of duty in the assessment, collection, and sale of property. Did they not know if these directions were duly complied with a title would pass oven without a deed? Or, in other words, liad tiie words “ which deed shall bo good and effectual both in law and equity ” heen wholly omitted, would not the court hold that tiie sheriff’s deed passed the title of tiie delinquent tax-payer if ail tiie preliminary steps had been duly take.n ? Of this there can be no doubt; and if so, 1 ask, will not the court, by holding that these steps must still be shown to have been taken, deny to tiie words “ which deed shall be good and effectual in law and equity” any effect whatever, and render them wholly “vain and superfluous? ” How can the court, as good expositors, give to those words effect and operation by holding that the deed is dependent for its effect npou tiie preceding acts of the revenue officers? In tiie revenue laws of the United States and of all the States of the United States except tiie State of North Carolina, no validity whatever is attached to the deed of the tax-collector. There tiie deed depends wholly for its effect or validity upon tiie performance of each and all the requirements of tiie law by the revenue officers, and is-only executed to take the sale out of the statute of frauds. (4 Bet. B., 359; 4 Cr. B., 403; 2 Cou. B., 151; 4 Wheat. B., 77; 6 Wheat. B., 119.) And cases in several of tiie States have decided that it is incumbent on the purchaser co show that tiie directions of tiie law liad been complied with, and in many States it is held that the deed is not even prima facie evidence of such compliance, whilst in Keutucky it is held that a deed for the land sold for non-payment of taxes is a prima facie evidence that I he requisites of the law had been complied with, but proof of tile contrary is admissible. (3 Bibb. B., 320; 3 Mon. B., 311.) The same doctrine prevails in Connecticut and Massachusetts. In Tennessee tiie doctrine is, that “it was sufficient for a purchaser of land sold for taxes to show such proceedings as tiie law requires to lie of record, and all not required to be of record will be presumed to be regular.” (Barry v. Bhca, 1 Tema. B., 345.) And will the court, alter they have examined and find there is no provision giving any validity whatever to the deed of the tax-collector (and much less such an one as is contained in our statutes, declaring it to be good and effectual both in law and equity.) in any of the statutes of tiie United States, or in the States where tiie above decisions and all others, except North Carolina, have been made, say that tiie validity of tiie deeds made under tiie. act of 1840 shall be tested by the same rules applied by the courts of the United States to sales made under tiie revenue laws of tiie United States?
    
      The statute of the 5th February, 1842, was a modification of the statute of 1S40. This is evidenced by two facts: tiie words prima facie are italicised to mark tiie change in tiie effect of tiie deed, and the time to redeem it is reduced to one year. Congress would certainly not increase tiie weight of evidence to be given to the deed and reduce the time to one-half. No; they thought some hardships might occur when the statute was broad as that of 1S40, and tlu-y modified it.
    1 have said the statutes neither of the United States nor of any other State in tiie Union except tiie State of North Carolina attached any validity to the deed per se. Tiie statute of North Carolina makes tiie deed of the sheriff “good and valid in law, the land sold being first advertised for such length of time as is required in cases of execution.” In that State there was not a direct lien oil tiie land sold as there is in the 24th section of tiie statute of 1840.
    (Hr. Iladley then quoted in full the case of Martin v. Lucey, 1 Murph. B., 311, and a case decided fourteen years afterwards, reported in Car. Law Repository, vol. 1, p. 3-12, confirming it. Rep.)
    
      P. IV. Gray and J. B. Jones, for appellee.
   Hempi-iill, Ch. J.

The question raised m tins case is as to the legal effect of a deed executed by a sheriff upon a tax sale under the statute of 1S40. It is declared by tiie 25th section of the statute that “every sheriff who, as tax collector under this act, shall sell any real estate to satisfy any tax imposed by this law, shall make and execute to the purchaser or purchasers thereof a deed of conveyance immediately, which deed shall be good and effectual in law and in equity; ” and it is contended that by force of tiie provision that tiie deed shall be good and effectual both in law and equity, tiie deed, per se, furnishes conclusive evidence of tiie regularity of tiie sale, and that all the previous requisites have been complied with, and a case is cited (Martin v. Lucey, 1 Murphey R., 311) which, on a provision that the deed should “be good and valid in law,” contains doctrines which support tiie position assumed by the appellant. And it is further stated by tiie appellant in his elaborate and ingenious argument that in tiie revenue laws of the United States, and of all the States except the State of North Carolina, no validity whatever is attached to the deed of tiie tax collector; and it is urged that peculiar force should be given to the adjudications of the courts of North Carolina, as they were made with reference to the provisions of the only statute which is analogous to our own. If it be intended to assert that none of tiie revenue laws of the other States contain provisions importing that the deed shall be effectual in law and equity, or expressions of a similar "import, I apprehend that this will be found to be a mistake. I have access to the statutes of but few of the States; but on examination of the statutes of Mississippi for several years I find that the same or equivalent expressions as to tiie effect of a deed upon a sale for taxes are used; and in Clay’s Alabama Digest, in the 53d section of the law on tiie subject of taxes, there will be found tiie exemplar and model from which the 25th section ■ of our statute was doubtless copied. Tiie provision of the Alabama law declares that tiie collector on sale of real estate shall execute to the purchaser or purchasers thereof a deed of conveyance immediately, which deed shall be good and effectual both in law and equity. These are tiie identical expressions employed in our own statute.

This provision of tiie Ahtbama law appears to have been adopted in 1815 during the organization of tiie Mississippi Territory, and it remained in force in Alabama in 1S43; consequently tile adjudications of the States of Mississippi and Alabama are entitled to great weight in determining upon tiie intrinsic force of a conveyance to a purchaser of real estate at a tax sale.

The argument of the appellant, that a deed to be effectual in law and equity must be held to pass, proprio vigore, both the legal and the equitable title to the property, is plausible; and had not ail opposite construction been lirmly established, such might have been construed to have been the intention oí the Legislature. But doctrines the reverse of the proposition assumed by the appellant as founded upon the plain meaning of the terms of the law have received very general sanction in all cases where the deed is not made prima facie evidence, or evidence alone, or conclusive evidence of the performance of all the previous requisites. The doctrine, as expounded in the case of Williams v. Peyton, (4 Wheat. R., 77,) is that the power of the collector to sell is but a naked power, not coupled with an interest, and that in all such cases the la ,v requires that every prerequisite to the exercise of that power must precede its exercise; that the agent must pursue the power, or his act will not be sustained by it; and that it is a general principle that a party who sets up a title must furnish the evidence necessary to support it. If the validity of a deed depends upon an act in pais, the party claiming under that deed is as much bound to prove the performance of the act as he'would be bound to prove any matter of record on which its validity might depend. It forms a part of his title ; it is a link in the chain which is essential to its continuity, and which it is incumbent on him to preserve. It is true that this construction was in reference to a deed tinder an act of Congress which simply required tlie execution of tlie conveyance, but did not declare Us effect in evidence as to the validity of tlie sale. But the doctrines expressed in this case have been followed in cases in Mississippi and Alabama under statutes identical with our own. I have not tlie eases from Alabama before mo, but as some of them were decided between ISIS and 1S43 the adjudication must have been with reference to the statute before cited, and which during this period was in force. In 5th Ala. R., 433, it was held that to sustain a title tinder a sale for taxes the party must show that all the prerequisites were performed; and the same doctrine was affirmed in lltli Ala. R., 295. In 10th Smedes and Marshall It., 204, the (list motion between sales by tax collector and by sheriff was drawn. It was said (hat the whole jiower of the former was derived from the statute, and his authority depends on ui strict compliance with its provisions; that it was special, limited,' and a naked statutory jiower and must be strictly pursued ; but that the power of the sheriff was not derived from the statute only, but also from the judgment and execution ; that by the judgment the plaintiff acquires a lieu upon the land, and Hie execution is the authority to enforce that lien ; and if there were no statute prescribing tlie mode of carrying the judgment into effect, yet it might he made effectual, and a sale under it would be valid if by law any process were authorized to issue for that pmrposo. And the same rule, as to tlie restrictions upon the exercise of tlie jiower of sale by a tax collector, was maintained in 12th Smedes & Marshall R., 49S ; and by one of the judges tlie principles expressed in tiie case of Williams v. Peyton were cited with approbation. (4 Pet. R., 359 ; 6 Wheat. R., 119 ; 2 Pet, Cond. R., 151; 7 Cow. R., 88; 18 Johns. R., 441.) Tlie case in 12th Smedes & Marshall arose under the statute of 1S43, which varied from previous and succeeding statutes in making the deed prima facie evidence of the performance of tlie previous requirements; hut this was held to change only the burl hen of jiroof from the jmreliaser to the plaintiff or former jrrojjrietor, making- it incumbent upon tlie latter to show a non-compliance with tiie formalities which by law should have preceded the sale.

It must he confessed that it is somewhat difficult to draw very definitely the line between tlie character of the jiower under which the sheriff, under an ordinary execution, makes liis sales and that by which, as a tax collector and by virtue of an execution emanating from an officer clothed with authority for that purpose he proceeds to sell for satl-faction of taxes due from t lie d< lin-quent. But the distinction lias been recognized in the adjudications of a majority of tlie States. Tlie deviations of tiie sheriff in the manner of exeentin i tlie power are held not to prejudice bona fide purchasers at his sale ; but' otherwise with those of tlie tax collector, they are held to be fatal. Tlie reason or the policy which requires or justifies the distinction is not very apparent, unless it he that, generally, the amount of propeity exposed to sale for the non-payment of taxes is out of all proportion to the sum due. But, undoubtedly, it is tlie duty of every citizen to pay the taxes necessary to support the Government under which lie lives and by which he is protected. He participates in its benefits ancl lie should share in its burthens. And if on failure or refusal to contribute to the support of the Government he be divested of some portion of the property the rig-lit to which is derived from and sustained by the will and power of the social organization, which by his delinquency he has attempted to enervate, he could not complain; and accordingly in some of the Stales as well as in our own (under the laws nowin force) the deed is declared by statute to bejprima facie evidence that all the requisitions of the law have been complied with in'making the sale; whilst in Hlinois it is declared, when standing alone, to be evidence of good title; and in Arkansas, evidence that everything has been done necessary to the validity of the sale; and in New York it is made conclusive evidence that the sale was regular. (1 vol. Revised Statutes N. Y., p. 412.)

Hail (lie law of 1S40 contained a provision similar to that cited from New York, the position of appellant would have been sound. Irregularities or abuse in tiio execution of (lie power would not have vitiated the title in the I muds of a bona fide purchaser. The sheriff would have been responsible in damages to the original proprietor, but his act would not have been void. The only inquiry which could have been made would be whether the officer had transcended his power, or whether there was fraud or collusion between the sheriff and purchaser. But the declaration that the deed shall be good and effectual both in law and in equity must be regarded as giving no special sanction to (lie conveyance beyond that derived from the general principles of laws. If it mean anything it might be taken to cure not only irregularities but excesses in the execution of the. power, and also frauds in the"party. The point raised by judicial construction was. that the deed -was not evidence of the regularity of the sale, but that this must be proved, aliunde, by the claimant under the deed. If the Legislature intended to change the law in this particular, their will should have been expressed in terms which could not have been misunderstood ; otherwise, the courts would not be authorized to depart front a well-established rule of construction. If the deed had been declared to be prima facia or conclusive evidence of the regularity of the sale, or in similar terms having reference to the legal effect of the deed in evidence, the language would have "been, in reference to the law as it stood, intelligible, and the will of the Legislature being understood must have been obeyed. But the declaration that it shall be valid and effectual both in law and equity is one of those vague generalities frequently employed when the subject is not thoroughly comprehended, or when the writer has no precise aim and object in his own mind, and consequently is forced to the use of general terms which may possibly embrace and effect the object that ought to have been specifically expressed and secured, and these generalities are left to puzzle the brains of future readers and commentators in the. vain attempt to make sense out of terms which, as used, have no meaning in themselves. We are under no obligation to engage in such speculative conjectures or fruitless inquiries.

Judgment affirmed.  