
    Yenda and others v. Wheeler and another.
    (Note 68.)
    The power of the officer to sell land for the non-payment of taxes is a naked power, not coupled with an interest; and in all such cases the law 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. (Note GO.)
    The statute of 1848, (Uavt. Dig., art. 3143,) does nob dispense with a compliance with the requirements of tho law by the officer making a sale for taxes, nor relieve the purchaser from the effect of a non-compliance, but only changes the burden of the proof from tho purchaser to the party impeaching his title; .it is aá necessary to the validity of tho title now as it was before the statute was enacted that all the prerequisites of the law shall have been complied with.
    It is nob necessary here to determine whether the assessor’s deed is prima facie evidence* under the act of 18*18, (Ilarb. Dig., art. 3143,) of the existence of the lads on which his power to sell depended; for, if it bo so, it may bo impeached and invalidated by showing tho non-existence of those facts, or that the requirements of the law have not been complied with.
    Where an assessment, under the act of 1848, purported to be made in the name of the owner, but tho hamo was not that of the owner, and did nob appear to be so, except from the county map, the tax sale was invalid, although the records of the county did not contain' anything to show who was the true owner oilier than the map as aforesaid.
    Where the name of the owner was unknown, tho act of 1848 required lands to bo assessed by a description thereof one of the essential particulars of which was tho name of the grantee.
    A falsity which might probably mislead the owner in the designation or description in tho assessment of lands not rendered for taxation runs through and invalidates all subsequent, proceedings.
    Where a tax Iftw requires copies of the assessment roll to be posted at certain places, a failure' on the part of the assessor or collector to post the copies as required will invalidate the-tax sale.
    Where a tax deed assumes to convey the title of the unknown owner, without reference to-its derivation or the person under whom ho claimed, and the proceedings have been otherwise regular, it may be effectual; but where the officer undertakes to convey a particular title, tii© purchaser takes the title so conveyed; none other will pass by the deed.
    Appeal from Victoria. - The plaintiffs brought their action of trespass to try title to a league of land. They claimed as heirs of Manuel Yenda and his wife, Caciana Samhrano, under a title issued to the latter by the commissioner of DeLeon’s colony in 1833. The defendant claimed under a purchase made at a sale of the laud for (axes in 1850.
    The plaintiffs gave in evidence (he grant to Caciana Samhrano, and proved that, they were (lie heirs of the grantee, and that her husband, Manuel Yenda, died in 1828 or 1829.
    The. defendants introduced, as evidence of title in themselves, the deed of the assessor and collector of the county, bearing date on the 22d day of August, 1850, made in pursuance of a sale for the taxes for the year 1849. The cleed recited that the levy was made “upon the following property of the said M. “Yenda, to wit, 4428 acres of laud’lying and situated on the Garcitas creek, “ adjoining' the land of R. Rios and If. DeLeon, as will appear by reference to “ the map of the county of Victoria.” The deed purported to convey “ all the “right, title, and interest of the said M. Yenda, or of any other owner or “ claimant of the same unknown, under him, in and to the above-described “premises.”
    The assessor testified that he sold the land as the property of M. Yenda, 'a non-resident deliquent (ax-payer, from information derived from the map of the county; that the land was marked on the map as belonging to M. Yenda, and did not appear by the records to bo claimed by any one else. He further testified, at the instance of the plaintiffs, that lie levied on the land by virtue of his tax-list, of which he had three copies; that he had a rough draft of the non-resident deliquent tax-payers, not on his alphabetical list, but on a separate piece of paper; that his three rolls were not exact copies of this list; that he had forwarded to the proper office at Austin one of the copies, and had deposited one in the county clerk’s office, retaining one himself — ho did not recoiloct whether he had kept or destroyed the rough draft. The plaintiffs objected to the introduction in evidence of the assessor’s deed; but their objection was overruled. After the assessor had given liis testimony they moved the court to exclude the deed, which (lie court refused.
    The plaintiffs asked, among others, the following instructions, which were refused by the court, viz :
    1st. “That the requirements of the assessment law must be strictly “ complied with, and that any material variance therefrom, when proved, is “fatal to a deed by virtue of a tax-sale.”
    2d. “That, where it is shown that the assessor failed to state in his assess“ment roll the number of acres ami the person or patentee for whom the “ origina! survey was made, it is a fatal defect hi the sale made under such “ assessment.”
    There was a verdict for the defendant; a motion for a new trial overruled; judgment on the verdict; and the plaintiffs appealed.
    
      Lyile and Stockdale, for appellants.
    I. It has been, we believe, generally held, hotti by the courts of the different States and of the Confederacy, that under the ordinary provisions of the tax laws it is necessary for the party claiming under the. tax deed to show outside and independent of the deed that ail the requirements of the law have been complied with by the officer making the deed before it becomes evidence of title. This court has, we are informed, so decided in the case of Hadley v. Tankersly. The only difference in this regard between the lawr of 1S4S and those generally in force elsewhere is that clause of the 16(h section (Hart. Dig., art. 3145) which provides that the assessor’s deed shall be prima facie evidence that all the requirements of the law have ■been complied with in making tire sale,
    II. The obvious meaning and intention of the Legislature was to make the ■deed evidence prima facie of the assessor’s compliance with the law in regard to those things that relate directly to the sale; that is, of the notice, the sale, the purchase, and payment of the consideration-money by the grantee. It is ■not evidence of these Jacts, unless they be stated in the deed itself; for if the deed upon its face shows that the law has not been complied with, or omits to state the specific facts necessary to constitute a regular sale, it -is in the first case fatal to the deed, and in the second creates the necessity for other proof of the facts omitted. The court would not certainly presume the facts to he otherwise than stated, or take the mere general assertions of the assessor in the deed of conformity to the law as evidence of that conformity.
    The tax deed, then, under this law, we think, is evidence, prima facie, of the specific facts set forth in it, so far as they relate directly to (ho sale.
    III. It is not intended by this clause of the statute to make the deed any evidence whatever of the power of the assessor to sell. (Tallman v. White, 2 Comst. 1ST. Y. R., 00, et seg.)
    
    By the Yew York statute, upon which the decision in the case referred to was made, the comptroller’s deed is made conclusive evidence of the regularity of the sale, and conveys an absolute title in fee simple. The court held that it was evidence of the regularity of the sale, but not of the comptroller’s power to sell.
    The strongest case we have been able to find in favor of the deeds, (Martin v. Lucey, 1 Murph. R., 311,) gives the deed no higher degree in evidence than a sheriff’s deed for land sold under execution, making it evidence of conformity to the law in making the sale, but not of the power to sell.
    Our statute specifically makes the assessment roll the authority of the assessor to sell; (Hart. Dig., art. 3143;) it is by virtue of it that the levy is made; it stands in the stead of the judgment and execution; without it,'there can bo no levy, no sale, no deed of any validity.
    The law further requires, before the levy is made, that the assessor should make out a delinquent list, posting one copy of it on the court-house, depositing one with the county clerk, and forwarding one to the comptroller. (Ilart. Dig., art. 3150.) The making out and publication of these lists are necessary to constitute the assessment roll a judgment or execution, and without them, there is no power in the assessor to sell.
    These are, both the assessment and delinquent lists, easily susceptible of proof; they are preserved in the arel lives of the State and county; they are the best proof of themselves; and constituting, as they do, the authority of the assessor to sell, they become as necessary concurrent testimony to the admissibility of the tax deed as a letter of attorney is to the deed made, under its authority. Without these, the deed marked D, in this case, is, we respectfully submit, no evidence of title whatever in the defendants.
    The Supreme Court of the United States hold, (4 Wheat. R., 77,) that the authority of the officer to sell is a power not coupled with an interest, and therefore, that it is necessary for the purchaser to show strict conformity to the law giving the power.
    IV. If this court should hold that the law makes the deed prima facie evidence of the performance of all the requirements of the law, both in regard to the things relating directly to the sale, and those precedent to the levy, we submit it, that the court below erred in not, upon motion, striking out from the evidence the deed, upon the testimony of plaintiffs showing the non-conformity of the assessor with the law in making the assessment and assessment roll.
    The assessment of the property of non-residents, to be regular, must be made in the name of the owner, if known; if not, then it must bo assessed by a description of the property; if lands, it must be described by the number of the tract, the quantity of acres, and to whom patented, or to whom surveyed for patent. (Hart. Dig., art. 3137.) The object of the law in thus requiring the land to be describe,d, is, by the assessment roll and delinquent list, to notify the. owner that the taxes are due. and unpaid; and further, that if they remain unpaid, the land will be subject to sale. It is the peculiar object of the delinquent list to do this; as that list follows and is copied from the assessment roll; it is necessary to the proper notification of the owner that tiie description should be so certain and true as not to mislead. A misdescription in the assessment will run through all the subsequent proceedings to subject the land to sale, and ¡lie very means intended in tlie delinquent list and notices of sale to put. the owner on his guard and notify him of the danger of a sale of liis property, will operate an injury to him in misleading him by a false notice. Then, if the description or designation of the land is false, or if it be not such a complete description as the law commands, it is fatal to the deed. (2 Comst. !R., 60, it so'].; Dike v. Lewis, 4 Denio R, 2S7.)
    In ihi-i oa ¡he only description oi I he. laud in evidence is that contained in the deed, w birth, it is to be presumed, followed and was copied from the assessment roll. That description of tlie land -hows that ii was assessed in the name of M. Yenda ; that it contained four thousand four hundred and twenty-eight acres; that h i ¡ situated on the Carchas creek, adjoining the land of 11. Kios and P. lie Leon, referring to the map of Victoria county. .
    This is not a sufficient description of the land, if true, for it does not state that the laud is situated in Victoria county, a fact upon which the power and authorily of ihe assessor depends. (Ilart. Dig., art. 3143.) The description is false and calculated to mislead, for it names M. Yenda as the known owner, when, from the whole proof, it appears that he was not the original grantee, in whose name tlie assessment should have been made, or at any time the known owner of the land. It is insufficient, for it does not give the number of the tract-. It is again false, for, under a similar assessment for the taxes of 1846, this same assessor had sold and conveyed, so far as lie had power to do so, all the filie of this M. Yenda, whom lie described as the known owner, to these identical defendants, who thence became to him the known owners of the land.
    It was held in the case in 4 Denio that a mere mistake in the number of the tract, where all else in the description is correct and true, is a fatal falsity, rendering the deed of no validity whatever. This is a much stronger case, for, from tlie whole facts, suspicion of fraud is thrown upon the last assessment, sale, and deed. The assessor is bound to take notice of his own act, the records of his own office and of tlie county clerk’s office. It is the same assessor, and these defendants purchase in both cases. There is no pretence that there has been any redemption from tlie first sale. Does this not show a strong probability that the last sale and assessment were made with tlie intention to holster and strengthen the first deed?
    V. Tlie sale of lands of non-residents for taxes is a rigorous proceeding, divesting the owner of his title without liis consent, and in this state generally for a trilling and wholly inadequate consideration. It is certainly not tlie object or intention of the law that this should be done, without the means which are used, to make known to and notify him of the prohahle or intended sale, are so certain and true that upon inquiry he shall he correctly informed. The proceedings under this law to subject tlie property to sale are even more rigorous and less formal than by tlie laws of the United States and the States under which the courts have established the principle that the officer should strietly conform to the law, and that such conformity should be shown by the claimant under tlie sale. A false description defeats the just object and purpose of all tlie notices. We think that in this case the description of the land in the deed, delinquent list, and assessment roll is so uncertain, so false, and so inadequate under the law, as to be fatal to the deed.
    The law requires one original and ¡bree copies of the assessment roil. Yeither a copy nor the original were introduced, and from the testimony it is a matter of doubt as to tiie existence at all of the original, and a matter of certainty that the copies were not exact and that the original was not an alphabetical roll, as required.
    We do not think it necessary to discuss the correctness of the ruling of the District Court in refusing tlie instructions or now trial, as this is dependent, in tlie main, upon the principles already considered.
    
      J. IT. Mitchell, for appellees.
    It does seem to me most palpable that, by the requirement oí our statute on this subject, approved-, 184S, all the prerequisites to a valid sale oí land for taxes are (1) that these taxes shall be due and unpaid; (2) that they shall be advertised for a specified time; (3) in the name shown by the records of the county where the laud lays — (1) in the clerk’s office, (2) on the county map — (4) at three public places in the county, the court house being one. And all this the petitioners proved in this ease by witness Pridham. But were this not all, he also proved (5) that he had made three copies of his assessment roll, keeping a separate list of delinquents, non-resident of the State; (0) returned two of them to the proper offices, retaining- one for his own use. And after this, could it' harm any one that he did also make out and keep a fourth copy, a rough draught or set of memorandums, from which the three required copies were in whole or in part made? The proposition is purely unreasonable.
    When the Legislature declared that the tax deed should ba prima facie evidence of title, did they intend that a purchaser should file a bill in chancery to perpetuate the evidence requisite to support the title? Or did they require that he should file an information against the tax collector for a failure to do his sworn duty? Is the Legislature authorized by the Constitution to pass revenue laws — to levy and collect taxes? If so, have they not passed a law for the collection of taxes, and when her officers have complied even strictly with the requirements of that law, and sold and conveyed to citizens resident, lands claimed by non-residents, or even aliens, shall not the purchasers of those lands hold by sound, indefeasible title? To assert the contrary by judicial sanction were to override the legislative authority, set aside the organic law itself, and wholly dissolve the State Government.
    To the first six assignments of error the defendants reply: The act of the Legislature expressly makes the tax collector’s deed prima facie evidence of title, and of all proper recitals contained in it; and it is not necessary, nor is it contemplated by the law, that those recitations should be stated with that [416] legal, technical certainty which is not required by our law, oven in pleading-sin court, but only by the English law in pleas in abatement. Still more especially is this the case where there is no ground shown or even squinted at by the evidence, tending to show illegality or unfairness of either the tax collector or the purchasers. But if, in this case, the recitals in the deed of the prerequisite acts of the officer to make a valid sale of land are not sufficient of themselves, the testimony of Pridham (the tax collector) is ample to cure the ■defect, and the petitioners may not gainsay that evidence on any ground of illegality, because introduced by themselves.
    Again, if the deed be not sufficiently precise and specific to identify the land sued for with that the defendants had trespassed upon, it is the fault of the petitioners and not of tins defendants, (1) because the deed has all the descriptive certainty contemplated by the statute in such a case, where the only evidence of ownership lliat could be found was the name of M. Yenda marked upon the land on the county map; but (2) by the petitioner’s pleading the defendants are acknowledged upon the record to be in possession of the very land for which they sue; and so after verdict in favor of the defendants that their title to the land sued for is better than that of the petitioners, any want of sufficient descriptive certainty in the deed is cured — the pleading and the verdict dispels every mist of doubt as to the identity.
    The first instruction asked for by petitioners ought to have been refused by the court, as being- in part contrary to the evidence, in part without evidence, and against the law.
    To the second instruction the answer is, precise certainty is not required as to quantity in acres, but a general description is ’good, because where there is no deed of record in the county clerk’s office, the county map is to give the •description; and if that be only a name marked upon the survey of a league .and labor, or other diinension of tract as commonly known in the country^ to .require more would be to require an impossibility which the law never does,
    
      
      ad impossibilia [417] lex coget neminem,; this instruction was therefore properly refused.
   Wheeler, J.

The question to he determined is as to the validity of the title of the defendants acquired hy their purchase at the sale of the land for taxes.

To vest a title in the purchaser, the officer must have the power to sell, and the requirements of the law must have been complied with iu making the sale. Tiie power of tlie officer to sell land for the non-payment of taxes is, iu the language of the court in Williams v. Peyton, (4 Wheat. R., 77,) “a naked “power not coupled with an interest; and iu all such cases, the law requires “ that every prerequisite to the exercise of that power must precede its exer“cise; that the agent must pursue the power, or his act will not be sustained “by it.”

This principle was recognized in the case of Hadley v. Tankersly. (8 Tex. R.,) And it was held that, under the act of 1840, which did not make the deed prima facie evidence of the regularity of the sale, the party claiming under it must prove that all the prerequisites of the law had been complied with.

The act of 1848, (Hart. Dig'., art. 3145,) provides that the deed, when duly recorded, “ shall be prima facie evidence that all the requisitions of the law “have, been complied with in making such sale.” This statute does not dispense with a compliance with the requirements of the law by the officer, or relieve the purchaser from the effect of a non-compliance ; but only changes the burden of proof from the purchaser to the party impeaching his title. It is as necessary to the validity of the title now, as it was before this statute was enacted, that all the prerequisites of the law should have been complied with. The principle that the officer must exercise his authority strictly in conformity to law, or his act will be invalid, and will vest no title in the purchaser, is not affected by the statute. But it makes the deed frima facie evidence of the regularity of the sale, and throws upon the party impeaching the title the burden of proving that the requirements of the law were not complied with in making the sale.

A distinction has been taken in argument by counsel for the appellant between the power to sell and the regularity of the sale; and there manifestly is a clear distinction. The proceedings in making the sale may be regular, and the sale be ineffectual to pass the title for the want of power in the officer to make it. This distinction has been recognized by the Supreme Court of New York iu the cases cited by counsel ; and it is there held that the statute of that Slate, which makes the deed conclusive evidence of the regularity of the sale, and declares that it shall vest iu the vendee an absolute estate iu fee simple, applies only to cases iu which the officer has power to sell; that though the deed is conclusive evidence of the regularity of the sale, it is not so of the power to sell, and that the statute applies only to the proceedings to be had after the right and power to sell are acquired. (2 Comstock, 66; 18 Johns. R., 441.) To empower the assessor to sell, there must have been a legal assessment of the taxes, and a failure to pay them; and there are other provisions of the law which must have been complied with, before the right and power to sell will have been acquired. (Hart. Dig., art. 3133, 3136, 3137, 3138, 3150.)

It is not necessary here to determine whether the assessor’s deed is prima facie evidence, tinder the act of 1S4S before cited, of the existence of the facts on which his power to sell depends; for if it be so, it may be impeached and invalidated by showing the non-existence of those facts, or that the requirements of the law were not complied with ; and the decision of this case turns upon the inquiry whether the evidence establishes such non-compliance with the requirements of the law. That it does, will, we think, be apparent by-a. comparison of the provisions of the law with the acts done by the officer in one- or two essential particulars.

The statute provides that all property shall be assessed “ in the name oí the .“owner, if known; and if not, then it shall be assessed by a description of the “property; if lands, it shall be described by the number of the tract, quantity “of acres, and to whom patented, or for whom surveyed for patent.” (Hart. Dig., art. 3137.)

Tiie statute Unis plainly requires that the land shall be assessed in the name of the owner if known ; but if lie be unknown it must be assessed by a description of the land; it provides what that description shall contain, and one of its essential constitutents is tiie name of the grantee. The assessment in this case was made in the name of the supposed owner, M. Yenda. This, however, was a mistake. Manuel Yenda was neither the owner nor the grantee. He had died several years before the grant was made. Caciana Sambrano was the grantee, and the owners were her heirs, the present plaintiffs. It is manifest, therefore, that the land was not assessed, either in the name of tiie owner or by such a description as tiie statute requires, that is, one embracing among other particulars mentioned, the name of the grantee. That it should have been in tiie one mode or the other clearly was necessary to the validity of the assessment. It may be said that it was tiie fault of the plaintiffs that their title was not recorded in the county, and it is true that it should have been so recorded. But if this afforded an excuse for not knowing who the owners were, it afforded none for not giving a correct description of the land by tiie name of the grantee. This coulil have been easily ascertained by reference to the abstract of original titles. The owners are not accountable for mistakes made in the county map, in causing which they had no agency.

In the case of Tollman v. While, (2 Comstock R., 66,) a case in point, the court-of appeals of New York held I his language : “An accurate designation “ or description of the land assessed is essential to the validity of the assess“ment. The assessment of non-residents’ lands is made with the ultimate

11

view of collecting- the tax by advertisement and sale of the land if it “should not be voluntarily paid. The comptroller’s sale is a rigorous proeeed-“ing. It divests (lie owner of his title without his consent, and often for a “ very trivial consideration; anil the Legislature lias, therefore, shown a cau“tions solicitude that it should not be done without his knowledge.”

Tiie assessment must contain a true description of the land in order that the purchaser may be enabled to know what laud he is purchasing, and that the. ■owner may know from (lie advertisements required lo precede the sale, that his land is exposed to sale and that lie may save it by paying the tax. If the 'land he misdescribed in the assessment, it will, of course, be misdescribed in tiie comptroller’s and county clerk’s offices, and in the notices and advertisc-■ments. The, mistake and falsity of description in the assessment necessarily runs through and invalidates all (he subsequent proceedings. In the, case cited it ivas said : “An assessment of non-resident land is fatally defective and •“void if it contain such a falsity in the designation or description o£ the parcel “assessed, as might probably mislead the owner and prevent him from ascer- “ taining by the notices that his limd was to bo sold or redeemed. Such a “mistake or falsity defeats one of the obvious and just purposes of the statute “ — that of giving to the owner an opportunity of preventing the sale by paying “the tax.”'" It is obvious that the misdescription of the land in this case was calculated to mislead. It is not to ho supposed that an advertisement of tiie land of M. Yenda would apprise those claiming title under a grant to Caciana Sambrano that theirs was the land intended. "To hold their title divested by a sale under such circumstances would be to defeat the manifest intention of the Legislature in the various provisions made to protect the rights of the owners of land liable to be sold for the non-payment of taxes.

The statute further requires of the assessor to make out “three descriptive “lists of all taxable property in his county on which tiie taxes remain “unpaid belonging to non-residents, who shall he named if Known; if nn-“known, shall‘he'so described; one of which lists shall be filed in the office “ of the clerk of the County Court of his county, another shall be posted up “at the court-house door of said comity, and the other shall be transmitted to “tlie comptroller of public accounts.” (Id., art. 3150.) The assessor testifies that he made out three copies of his tax list; one of which he forwarded to the proper office at Austin, one he deposited in the county clerk’s office, retaining tlie other himself. It appears, therefore, that instead of posting up one copy at the court-house door, as tlie law required, he retained it in his possession. This was a material departure from the requirement of the law, one object of which was to apprise the owner that his land was to be subjected to sale for the taxes, and to afford him an opportunity of preventing- the sale by prompt payment.

Note 68. — Sam© case, 11 T., 562.

Note 69. — Robson v. Osborn, 13 T., 298; Devine v, McCulloch, 15 T., 488; Wofford-u-McKinDa, 23 T., 36; Kelly v. Medlin, 26 T., 48; Davis v. Fames, 26 T., 296.

But if the title were not obnoxious to these objections, there is another which must be held fatal to the right of the defendant, under,his deed from the assessor. Tlie deed professes to convey only tlie “right, title, and interest “of 11. Yenda, or of any other owner or claimant of tlie same, unknown, “ under him.” If the deed had assumed to convey the title of the unknown owner without reference to its derivation or the person under whom he claimed, and tlie proceeding liad been otherwise regular, it might have been effectual. But when the officer has thus undertaken to convey a particular title, the purchaser takes the title so conveyed; none other will pass by the deed. That manifestly conveys only the title of M. Yenda and those claiming under him. But tlie plaintiffs do not claim under Manuel Yenda, and consequently tlie deed does not profess to convey to the purchaser their right. We conclude that tlie assessor’s deed was inoperative to divest tlie plaintiffs of their title, not only because of tlie invalidity of the assessment, hut because the deed did not convey tlie title of the plaintiffs, and consequently that tlie court erred in refusing- to exclude it from the jury. The court also erred in refusing instructions asked by the plaintiffs, and in overruling the motion for a new trial.

Tlie judgment must, therefore, he reversed and the cause remanded.

Beversed and remanded.  