
    Lessee of the Heirs of James Thompson v. John Gotham.
    Under the grant by Connecticut, to the sufferers in the revolutionary war, where the original sufferer was dead, the share for his losses passed to his heirs by purchase, not by descent.
    To sustain a collector’s deed for land sold for taxes, proof must be given to show that notice and the other preliminary steps have been duly taken ; the recital in the deed is not proof of such facts.
    The statute of limitations does not affect claims to land until after the Indian title has been extinguished.
    Partition of land held in common, will bind the owner of an interest although other persons may have represented his right >n the partition proceedings.
    
      Quere. If the territorial j urisdiction of Connecticut extended over the Westera Reserve until her deed of cession in 1800.
    
      Ejectmemt for a part of section 4. T. 6, R. 20. From Huron. ■Upon the trial, the plaintiffs proved themselves to be the heirs of James Thompson, late of the state of Connecticut, deceased, and claimed title to the land in controversy under a grant from that state; made on the 10th day of May, 1792. Thompson died in 1785, seven years before this grant was made.
    The defendants then introduced copies of records from a court of probate in Connecticut, from which it appeared that Guy Richards was appointed administrator on the estate of Thompson, and that in 1797, he was authorized to sell the real estate of said Thompson. It ■further appeared from the return of sales by the said Richards, that the interest of Thompson in the fire lands, so called, estimated at two hundred and ninety-eight acres, was sold to Nathaniel Richards, *on the 28th day of August, 1798. Two days after the-sale, the administrator conveyed his interest to Nathaniel Richards, and he re-conveyed the same to Guy Richards, the administrator, on the same •day.
    The defendant next gave in evidence an act of the general assembly of the state of Ohio, of the 15th April, 1803, incorporating the company commonly called the fire land company, by the name of “ the proprietors of the half million acres of lands, lying south of lake Erie, called sufferer’s land.” And also the minutes and records of said ■ company, proving the assessment of a tax of twenty-five cents on the pound, original loss, for the purposes named in the act of incorporation, the appointment of William Richards, collector of said fax, for New London, and the qualification of said Richards, as collector. In connection with this record, the defendant introduced a deed from William Richards, collector, to Guy Richards, bearing date the 25th -of August, 1805, which purports to convey the interest therein described, as being the rights of the proprietors of that loss, which was set in the original grant to James Thompson, of three hundred and fifty pounds and sevqn pence. This deed recites the act of Ohio, incorporating the company, the assessment of the tax of twenty-five cents on the poitnd, the notice of such assessment, the default of payment, the order of the company for sale in default of payment, the sale to Guy Richards as the highest bidder, and that the deed was made in conformity to the order of the company, for the sale of tha rights therein named.
    In the partition of the fire lands, so called, this right was -,aet to Richards in the section including the land in controversy.
    
      The defendant further gave in evidence a deed from Guy’ Richards for the premises, to Isaac Tillotson, dated October, 1809. A like deed from Tillotson to Asa Sandford, dated March, 1819. A like from Asa to Giles Sandford, dated July, 1819, and from Giles Sanford to the defendant, dated November, 1833
    The defendant further proved that he and those under whom he claimed, had been in possession of the premises since 1809.
    To rebut this last evidence, testimony was introduced by the plaintiff to show that his lessors had never been in the state of Ohio.
    The court charged the jury that the grant of the state of Connecticut, being subsequent to the death of James Thompson, no title to-the land ever vested in him ; that it was a donation to his heirs, and not subject to the payment of his debts. That the sale by the administrator, was of the interest of James Thompson, in the land, and as-James Thompson had no interest, the grantee could take ^nothing by the administrator’s deed. That the tax title was subject to the same infirmity, and that it was the duty of the jury to return a verdict for the plaintiff, which they did for eight acres. The defendant now moves for a new trial, because the court erred in declaring the administrator’s and collector’s deeds void.
    BoALT-and Worcester, for the motion,
    insisted that the court erred in holding that the administrator’s deed did not convey title. That although the grant was made by the state of Connecticut after the death of .James Thompson, and of course vested the title in his heirs, by its terms, yet as it was made to compensate a loss sustained by their ancestor, they must be holden as taking by descent, and not. by purchase. And to this point they cited Bond v. Swearingen, 1 Ohio, 395. They further insisted, that at the time of the sale, the premises in controversy were within the jurisdictional limits of the-state of Connecticut, and so continued until 1800, when that state authorized her governor to cede the jurisdiction of that state in the-Western Reserve, to the United States, in pursuance of an act of Congress, which authorized the President to quit claim, for the use of persons holding under Connecticut, all the right, title and interest, to-the soil of the Western Reserve. That the land being thus within the jurisdiction of Connecticut, her courts, in pursuance of her laws, might with propriety order its sale, and that sales made in pursuance, of such order, would be good and valid, and convey title. To sustain these positions, they argued at great length and with much ability. They further insisted, that as the lands were within the jurisdiction of Connecticut, the statute of limitations of that state must be operative, and that by this statute the rights of the lessors of the plaintiff would be barred. They claimed that the sale for taxes was in pursuance of the law incorporating the fire land company, and of course-by this sale a title was vested in G-uy Richards, by the collector's deed.
    Hopkins; for the plaintiff,
    insisted that the heirs of Thompson took by purchase and not by descent; and claimed that this principle had-been decided by this court in a number of cases in Huron county. Of these he referred to the Lessee of Garden and Huntington v. Wm. Winthrop, and Stephen Holt and wife v. John Miller. Admitting, then, the jurisdiction of the state of Connecticut, as claimed by the defendant’s counsel, the purchaser from the administrator of Thompson could acquire no interest in these lands, because Thompson himself had no interest. He insisted th?/t Richards acquired no title under the sale for taxes, because there was no proof that legal notice-had been given of the sale, or that the other requisitions of the law had been complied with, and cited 3 Ohio, 232; 5 Ohio, 368 ; 4 Wheat. 77 ; 9 Cr. 64.
   By the Court,

Hitchcock, Judge.

In deciding this ease, in the view we take of it, it will be unnecessary to determine whether the-state of Connecticut had jurisdiction over the Connecticut Western Reserve, prior to the act of cession of 1800, or not. This question does not appear to have been agitated upon t-he circuit, but for the-purposes of this case the jurisdiction seems to have heen admitted.

The court charged the jury that the administrator’s deed conveyed, nothing to the grantee, because the intestate had no interest in the land.

Whether the opinion of the court thus expressed was in conformity with law, must depend upon the construction of the grant of the state-of Connecticut. This grant was made by the legislature of that state, by resolution bearing date May 10th, 1792. Swan’s L. Laws, 81. To-its proper understanding it is necessary to take the preamble in connection with the resolution, and it maybe useful to quote both the preamble and resolution. It is as follows : ‘‘ Upon the memorial of the towns of Fairfield and Norwalk, showing to this assembly, that many of the inhabitants of said towns suffered great losses by the devastations of the enemy, during the late war, praying a compensation therefor ; and in a report of a committee appointed by this assembly, at. their sessions held at Hartford, in May, 1791, to ascertain from doeuments in the public offices, the amount of the losses of the said •memorialists, and others, under similar circumstances, which have been estimated conformably to acts of this legislature, being such as were ■ occasioned by the incursions of the enemy during the late war, distinguishing the losses of buildings and necessary furniture, from those of other articles, by said documents or otherwise ; and also, to ascertain the advancements which have been made to the sufferers, by ■abatement of taxes or otherwise ; and report the same, with their opinion relative to the ways and means of affording further relief, as per memorial and report on file. ■

“ Resolved by this assembly, that there hereby is, released and quit claimed to the sufferers hereafter( named, or their legal representatives, where they are dead, and to their heirs and assigns forev'er, five hundred thousand acres of the lands belonging to this state, lying * west of the state of Pennsylvania,-and bounding northerly on the shores of Lake Erie, beginning at the west line of said land, and -extending eastward, to a line running northerly and southerly, parallel to the east line of said tract of land belonging to this state, and extending the whole width of said lands, and easterly so far as to ■make said quantity of five hundred thousand acres of land, exclusive ■of any lands within said bounds, if any be, which may have been heretofore granted, to be divided to and among said’ sufferers, and their legal representatives, where they are dead, in proportion to the ■several sums annexed to their names, as follows in the annexed list.”

Then follows a list of "names, with the amount of loss sustained by •each. In this list, is the name of James Thompson, of New London, ■and the amount of loss annexed to his name is three hundred and fifty pounds and seven pence.

There can be no mistake as to the persons to whom this grant is made. It is the sufferers” themselves, where they are living, or to “ their legal representatives, where they are dead.” At the time it was made, James Thompson had been dead some years,-and the grant is as effectually to his heirs as if they had been specifically named therein. It is made to them, not as a matter of right, but as a donation to compensate for losses sustained by their father in the war of •the revolution, from the eo.mmon enemy. And in order to ascertain ■the extent of their interest in the land granted, reference must be had •to the amount of the losses thus sustained.

It is not insisted by the defendant’s counsel, but that the grant of ■■these lands was in fact to the heirs of Thompson, but it is claimed that they took them by descent and not by purchase; and that consequently they were properly liable to the payment of the debts of the.ancestor, from whom they descended, and could he sold for the pay-ment of those debts. The case of the Lessee of Bond v. Swearingen, 1 Ohio, 395, is cited as an authority. That was a case relative to-land within the Virginia military district, and it was decided by the court, that where lands have been located and surveyed by the ancestor, and subsequently patented to his heirs, the heirs* took by descent. By an entry and survey, the lands are appropriated. And when such-survey is made and recorded, every thing has been done that can be by the holder of the wu-rant, to secure to himself a legal title. He has-a perfect equity, and has a claim, noLupon the bounty, but upon the justice of the government, for a patent. And it is right and proper that if the patent is withholden during his life, and * subsequently emanates to his heirs, they should be held as taking by descent. The same principle applies where lands are purchased from the government of the United States, and the purchase money is paid. In-such case the purchaser can, as a ■ matter of right, demand from the ■ government a patent. By the purchase, the land is specifically appropriated, and whether patented or not. an interest in it will descend to* the heirs of the purchaser, in ease of his death.

But the case before the court is entirely different. James Thompson undoubtedly had a claim upon the liberality of the government of ’ Connecticut, if not upon its justice. But how that claim should be satisfied, whether by money, by abatement of taxes, or otherwise, was not determined during his life. There was no specific appropriation* of land for its satisfaction. Whether any satisfaction should be made, and in what way, does not appear to have been fully settled until the.passage of the resolution, by which the grant was made, and that was-long after his death. He never had any interest in these lands whicheou d- descend to his heirs. The grant then was a donation to those - heirs; they took by purchase, and the land granted could not be dispo-ed of to pay the debts of their ancestor. The deed, therefore, of-the administrator of Thompson, did in fact convey nothing, because-Thompson himself had no interest in tho land.

The court next charged tho jury that the deed from the collector of taxes was subject to the same infirmity with the deed from the administrator. Excop ion is taken to this part of the charge.

Ln saying that the collector’s deed is subject to the same infirmity with the administrator’s, I understand the court as meaning that it. -was equally defective to convey title. In order to sustain a title under .a sale for taxes, it is not sufficient to produce the collector’s deed. There must he evidence to show that the tax has been levied, that the steps required by law to authorize a sale have been taken, and that the person making the deed had authority to make it. It must be remembered that the tax for which the interest in this land was sold, was not a tax levied by the state of Ohio, but by a corporation created by the authority of the state of Ohio. Of course we can not resort to ■our public statutes to ascertain whether a tax was or was not levied. Nor can we resort to those statutes as pointing out the mode of collection. The law creating the corporation, is that which is to govern.

The evidence exhibited in this ease to sustain the deed of the collector, was a copy of the records of the fire land company, showing that by an act of the company of the 9th of February, 1804, a tax of * twenty-five cents on the pound of original loss, was assessed by the company, that William Richards was appointed a collector of the company, and that on the 10th of the same month, he was duly .sworn to discharge the duties of his office. This evidence shows that ■ a tax was assessed or levied, and we have no doubt that it was such a tax as the company had a right to assess or levy under its act of incorporation. In the 7th section of the act of incorporation, 1 Swan’s L. L. 107, it is enacted, that it shall be the duty of the collector or collectors, to execute all warrants to him or them directed by the treasurer, for collection of any tax or taxes laid by said board of directors. And said collector or collectors, shall give due and reason•able notice of the time when said tax or taxes are or shall be payable to the treasurer of said directors, by advertising the same at least three weeks successively, in at least one newspaper published in each of the counties of Fairfield, New Haven, and New London, in said state of Connecticut, and by giving any further notice in, or without said state of Connecticut, as said directors may order, and that said tax or taxes shall be assessed on the original rights or losses, in pro-portion to each person’s respective share or loss, as set in said grant: Provided, That said lands only shall be subject to the payment of said tax or taxes; and that when any tax or taxes, after the time limited •to the payment thereof, remains unpaid, it shall be the further duty of •said collector or collectors, to give notice of time and place, in manner aforesaid, that he shall proceed to sell, at public vendue, so much of the original loss and right of such delinquent proprietor, as will be ¡sufficient to pay said tax or taxes, and all reasonable charges arising thereon ; said notice to be at least sixty days previous to any sale being made by any collector.” There was no proof before the court, except what is contained in the collector’s deed, that any such notice as is required in this section was ever given. The recital in the deed is not sufficient proof of the fact. It should be proven by evidence extrinsic. To hold a sale for taxes valid, where there is this defect of proof, would be contravening the uniform decisions of this court upon the same subject matter. There being this defect of proof, the court decided correctly that the collector’s deed was not operative to convey title.

It is argued in favor of the motion for a new trial, that as these lands were within the jurisdiction of the state of Connecticut at the time they were sold at administrator’s sale, that the statute of limitations of that state, must, from the time of that sale,' have commenced running in favor of the purchaser, and that by that statute the claim * of the lessors of the plaintiff would be barred. It is a sufficient answer to this position of the counsel to say, that the statute of limitation operates in favor of a person in possession ; that the Indians were in possession of this land until the 4th day of July, 1805, when their title was extinguished by treaty, Swan’s L. L. 482, and that there is no evidence in the case to show that the defendant or those under whom he claims, were ever in-the actual possession until 1809.

Another objection to the verdict is, that it includes too much land. It is insisted by counsel, that if the heirs of James Thompson were not divested of their interest in the lands granted by the state of Connecticut, either by the deed made by the administrator of Thompson, -or by the collector of taxes, they must take the same in common with all the proprietors, regardless of partitions, which have been made ; ■and of course that in the lot of ground which is now in controversy, their proportion, instead of being eight acres, as found by the verdict, would be far less than one-fourth of an acre. This position assumed by counsel can not be sustained. In the second section of the act incorporating “ the owners and proprietors of the half million acres of land, lying south of Lake Erie,” Swan’s L. L. 106, the management of the affairs of the company is committed to a board of directors, to consist of nine persons, and among other things to be done by said ■directors, it is made their duty to adopt and prosecute measures “ to survey and locate the same,” that is the lands, into townships and otherwise, and to make an exact partition thereof, to and among the •owners and proprietors thereof, and their assigns, in proportion to the amount of loss or losses by them respectively owned, at the time of making such partition, in such way and manner as said board of directors shall direct.” In pursuance of this authority, the land was surveyed into townships and quarter townships or sections, the losses were classified, and partition made. In this partition a just proportion of land was set to each right or loss. The proceedings of the company were all recorded in books kept by their clerk, as well in the-transaction of other business as in making partition. By an act of the general assembly of the 20th of February, 1812, Swan’s L. L. 109, it is dii ected that these books of record be kept by the recorder of deeds of Huron county, that they “ be and remain a part and parcel of the records of said county, and that any certified copies therefrom, which-may hereafter be made by the recorder of said county, may be used- and read as legal evidence, in all courts of record, or elsewhere.”

In this'partition, the loss set to James Thompson in the grant of the * state of Connecticut, was classified as belonging to Guy Richards, he claiming as “ assignee” of this interest, in consequence-of the purchase at administrator’s and collector’s sales, and the land in controversy was in part set off to him in satisfaction of this interest. The land having been granted to the heirs of Thompson, and the title-still remaining in them, they may enforce their claim to it, either in/ his hands or in the hands of those who hold under him. In fact •when we remember that this partition was made more than thirty years since ; that it was just and fair ; that lands have been sold and settled with reference to, and in conformity with it; it may be well doubted' whether a court under any circumstances, could be justified in interfering with it.

New trial refused  