
    
      Samuel Kingman and wife and others vs. C. J. Glover.
    
    A tax execution, which recited that: “Whereas the Estate of A. B. hath been assessed, &c., which the said Estate hath neglected to pay;” and then commanded the sheriff “to levy of the lands, &c, of the said Estate,” the sum due for taxes; held, to he sufficiently regular to authorize the sheriff to levy and sell certain property which had been conveyed to a trustee for the use of A. B. for life, with remainder after her death to her children, although the execution was issued for taxes which became due after the death of A. B. and after the title to the property had vested in her children.
    A sheriff’s deed of land has relation back to the time of the sale so as to protect the purchaser from liability as a trespasser for taking possession after the sale, but before the deed was executed, 
    
    
      Before Frost, J. at Edgefield, July, Extra Term, 1845.
    The report of his, Honor, the presiding Judge, is as follows :
    “The plaintiffs were Samuel Kingman and Ellen his wife, James Washington and Mary Ann his wife, and Samuel, Abner and John 0. Hammond. Ellen Kingman and Mary Ann Washington, with the other plaintiffs, were the children of Col. Samuel Hammond.
    Col. Hammond had bought the tract of land in 1802, and had held possession from that time till his death, in September, 1842. By a copy of a deed of marriage settlement, admitted in evidence, dated 25th May, 1802, it appears that Col. Hammond had conveyed the land to Le-Roy Hammond and Samuel Goodwyn, in trust, for the use of his wife E. A. Hammond, during her life, and after her death in trust for the issue of the marriage. The wife of Col. Hammond died ten years ago. Either as the heirs of Samuel Hammond or under the limitations of the deed of marriage settlement, the plaintiffs acquired good title.
    It was proved that the defendant went into possession of the land in January, 1842, and that year employed an overseer'and six or seven hands in the cultivation of the land. He pulled down a log house and built others, and cleared up the land, and made fences, (fee. The plantation was in a ruinous condition when he took possession. The improvements he made were estimated to be worth more than two hundred and fifty dollars. In 1843 he worked the land with one Murphy on shares. During this year wood was cut and sold. The quantity and value were variously estimated.
    For the defence, was produced a deed of release from John 0. Hammond to Oliver Simpson, dated 24th December, 1842, of his share and interest in the land; a deed of release by Samuel Kingman and wife to Oliver Simpson, of her interest in the land, dated 19th January, 1843, with a release of dower. A deed of release from James K. Washington and wife to Oliver Simpson of her interest in the land, dated 20th February, 1843, with a release of inheritance informally executed. Also a deed from Abner L. Hammond to Samuel Hammond of his interest, in trust for the heirs of E. A. Hammond, wife of Samuel Hammond, dated 16th January, 1837. The record of proceedings in Equity in 1821 between the children of Col. Hammond and the trustees under the marriage settlement, whereby the land was ordered to be sold. The deeds of release before mentioned with these proceedings and a sale of the land, pursuant to an order made in the cause, the purchase by one Brooks, and the conveyance by Brooks, in 1830, to Samuel Hammond and Charles L. Hammond, in trust for the same parties and interests mentioned and limited in the deed of marriage settlement of 1802. Also, a lease of the land in dispute from Bouhvare, successor to Christie, sheriff of Edgefield district, to the defendant, for seven years, which had been purchased by the defendant, under a tax execution against the estate of E. A. Hammond. The sale under the tax execution was made the 1st of November, 1841; but the deed from the sheriff to the defendant, granting the lease, was not executed until the 5th October, 1844, which is the date of the deed. The tax execution could not be found, but it was admitted that it directed the sheriff to levy of the estate of E. A. Hammond a certain sum due for taxes by the said estate of E. A. Hammond.
    
      B. F. Goudy testified that he had-been tax collector from 1835 to 1844, and knew the land ; returns of it had always been made by Col. Hammond, as trustee of the estate of E. A. Hammond. He was very remiss in paying his taxes. Witness had paid two years himself. The tax execution was issued by witness and lodged in the sheriff’s office in May, 1841, for the taxes of the year 1840, which had not been paid. Witness told Col. Hammond of the execution. He replied, do your duty. The execution included the tax for the negroes of the estate as well as .for the land, and for the roads, poor and public buildings, as well as the general tax payable to the State. Witness also told John O. Hammond that he had lodged the execution. S. Christie, the former sheriff, proved that the land was advertised for sale day in September and October. On the receipt of a letter, (which was mislaid,) from some member or friend of the family, in Augusta, he suspended the sale until November. After the sale witness got a letter from Kingman, complaining of the sale. Col. Hammond was informed that the execution was in witness’s office. Abner Hammond lived in Augusta.
    The admissibility of the deed of lease from the sheriff to the defendant was excepted to, because it was executed after the action brought; but it was admitted in mitigation of damages. The writ in this case was issued the 15th September, 1843.
    It was ruled that though the plaintiffs could not recover the land, they might maintain the action for the mesne profits; because trespass could not be supported against one in possession, on the constructive possession of the plaintiffs derived from title merely; and unless this form of action could be maintained, a party Who had aliened or been divested of his" title could not recover against a trespasser for damage done to the land, or compensation for the use of it. But as the' plaintiffs had sued jointly, they could only recover to the extent of their joint interests.
    The jury were instructed that the plaintiffs had shewn a title to the land in themselves at the time the defendant entered, and could then have maintained this action. That the sale by the sheriff to the defendant of the lease under the tax execution was a valid sale; though the execution was directed against the estate of E. A. Hammond, and not against the plaintiffs personally. For admitting that the legal estate of the land was vested in the plaintiffs at the time the execution was issued, and had been from the time of E. A. Hammond’s death, the return of the property and payments of the taxes by Col. Hammond, ever since the death of E. A. Hammond, authorized the conclusion that he was the agent of the plaintiffs ; and, if their agent, they were bound by his acts or neglects, as if they had, themselves, acted or made default; and that it should be considered as their own act, if the property were returned by Col. Hammond as his own property, or that of any other person, or of the estate of E. A. Hammond. That the tax collector was authorized to issue an execution against any person or estate, in whose name the property was returned for taxation, and the sheriff to sell the property for the' payment of the taxes unpaid: and to permit the plaintiffs to except to the sale of the land under the execution against the estate of E. A. Hammond, would be to give them an advantage from their own wrongful act. That the lease to the defendant being valid, it would protect him from any claim of the plaintiffs for rent.
    
      The jury were further instructed, that the defendant was liable for waste; and that the destruction or alteration of houses on the demised premises, was waste ; as well as the cutting of timber for sale. The proof shewed that the waste for the pulling down of one or more houses was more than compensated by the erection of more and better houses ; and during the year 1842, the defendant had improved the premises. That the plaintiffs could not recover for waste, except such as was committed during the continuance of the joint interest of all the plaintiffs; and as the joint interest was severed in December, 1842, by the release of John O. Hammond to Oliver Simpson, the claim for damages must be limited to that period. From January to December, 1842, there was no proof of cutting and selling timber by the defendant. But inasmuch as the defendant had shewn no title to enter and occupy the land until after the action was brought, and was, when he entered, and continued until after this action was brought, apparently a trespasser, damages should be given to the plaintiffs sufficient to carry costs.
    The jury found a verdict of five dollars damages for the plaintiffs.”
    The defendant appealed, and now moved this court for a nonsuit or new trial.
    
      Griffin and Pope, for the motion.
    
      Wardlaw and Bauskett, contra.
    
      
       Vide Holmes vs. McMaster, 1 Rich. Eq. 340.
    
   Curia, per

Frost, J.

The facts material to the understanding of the points decided, are, that the title to the land in dispute was vested in the plaintiffs prior to November, 1841, when the defendant purchased a lease of it for seven years, at a sale by the sheriff under a tax execution. The defendant entered in January, 1842, but did not take a deed from the sheriff until October, 1844, which is the date of the deed. The plaintiffs’ writ was sued out in September, 1843. Before it was sued out, but after the entry by the defendant, several of the plaintiffs had aliened their interest in the land.

The questions made in the case are, whether an action of trespass to try title can be maintained by a party who had aliened or been divested of the title before the suit was commenced, for the recovery of damages and mesne profits against a trespasser on his possession before the title was divested; whether the sale of the seven years lease of the land in dispute to the defendant, was void on account of alleged irregularity in the tax execution ; and whether, if the sale was valid, the deed of lease should have relation back to the date of the sale, so as to protect the defendant from the plaintiffs’ claim for damages.

Assuming the affirmative of the first question, which, however, it is not necessary nor intended to decide, the plaintiffs cannot retain their verdict, if the sale under the tax execution is valid, and the deed have relation back from its date and delivery to the time of sale.

It is necessary, in deciding the validity of the sale under the tax execution, to advert to the Acts of the Legislature, regulating the manner of making returns for taxes, and the process for recovery in case of default to pay them.

The Act of 1808, 5 Stat. 566, directs that every person or his agent shall make a return for taxation of the property held in his own right, or in the right of any person he may represent. The Act of 1813, 5 Stat. 705, requires that the person making a return of property, shall take an oath that it contains all the property which he may be “possessed of, interested in, or entitled to in his own right, or in the right of any other person, either as guardian, trustee, attorney, agent, or in any other manner whatsoever.” If the tax assessed be not paid, the Act of 1788, 5 Stat. 52, directs the tax collector to levy the sum due, by warrant signed and sealed and directed to a constable, requiring him to levy the same by distress and sale of the defaulter’s property ; and if no such distress can be found, and the defaulter shall neglect or refuse to point out lands or produce goods, whereon the moneys so assessed may be forthwith levied, then the constable shall take the body of the defaulter and commit him to jail. The form of the warrant prescribed, which is still used, is to the following effect: “A. B., Tax Collector of, &c. to constable, <fcc. Whereas hath been duly assessed by me, the subscriber, tfec. the sum of dollars, for defraying the charges, &c. which hath neglected to pay : These are, therefore, to command yon to levy, by distress and sale of the lands, goods and chattels of the said the sum of , &c.” The form of the warrant then proceeds to direct the constable, if the person shall neglect or refuse to point out lands, tfcc. by which the amount of the execution may be levied, to commit him to jail. The Act of 1791, 1 Faust, 169, directs the tax collector, after levy on the property of any defaulter, to advertise the sale thereof for three weeks, in a newspaper, or by notice posted in three public places of the parish or district; in which notice shall be expressed the sum due by the defaulter, and the property levied on ; and sales shall be made at the Court House. If the sale be of land, the same shall not be sold for a period exceeding seven years. By the Act of 1802, 5 Stat. 449, tax collectors are required to place their warrants, for collection, in the hands of the'sheriff, who is also, by the Act, required to collect the poor tax, and by the Act of 1823, 6 Stat. 227, the road tax.

From this summary, it appears that a return may be made, by any person, of the property of which he may be possessed, as trustee, guardian, agent, or in any manner whatever; that if the assessed tax be not paid, the tax collector shall, ty warrant, require the sheriff to levy the Same by distress and sale of the'defaulter’s property ; and if no such distress can be found, and property be not shewn by the defaulter, that his body be taken and imprisoned. In the form of the warrant prescribed by the statute, both these processes are combined. The union of them in the same warrant is merely a matter of convenience, since the Act provides that the process against the person shall be enforced only in case no distress of property can be made. The warrants, if separately issued, would substantially comply with the provisions of the Act, and be more proper when issued for the collection of taxes assessed on the property of a deceased person. Any informality, therefore, in the warrant against the person, will not vitiate that directing a distress and sale of property.

In the printed form of the warrant under which the sale was made, the first blank was filled with the words, “ Est. of Mrs. E. A. Hammond,” and the following blanks were filled with the word “ Est.” only ; so that the warrant read, “ Whereas the est. of Mrs. E. A. Hammond hath been duly assessed by me, the subscriber, the sum of dollars, which the said ‘est.’ hath neglected to pay; these are therefore to command you to levy by distress and sale of the lands and goods of the said 1 est.’ the sum of dollars,” &c. With careless inadvertence of the absurd effect, the blanks for the arrest of the body are filled with the word est.”

The abbreviation very obviously signifies estate, meaning of Mis. Hammond. All that part of the warrant which directs an arrest of the person, may be struck out, and yet the warrant be legal and valid. The recital, that the estate of Mrs. Hammond is indebted, may not consist with strict legal precision, but the executory part of the warrant conforms to the requirement of the statute, when it directs the sheriff to levy the amount stated of the lands and goods of the estate of Mrs. Hammond, if the entire title had been vested in her during her life. If, after reciting that the estate of Mrs. Hammond had been assessed dollars, the next blank had been filled so as to read, which Samuel Hammond, trustee, has neglected to pay,” every legal and critical exception would have been obviated. The direction to levy the warrant of the lands and goods of the estate of Mrs. Hammond is as intelligible and certain as if it had been expressed in the formula of an execution against an executor or administrator. The only informality in the warrant, then, consists in the recital, that the estate of Mrs. Hammond had neglected to pay. .

But it is insisted that the warrant should express the name of some person, who is liable to pay the tax." This would be more formal, and should be done ;. but in some cases it would be a mere formality, as in the case of the property oí an absentee returned by an agent, and in all cases of the return of the property of a deceased person, unless it be held that the body of the executor or administrator may be taken under the warrant. The common apprehension, overlooking the legal representative, is directed immediately to the property of one deceased, and all credits, liabilities and property are referred to his estate. That mode of expression is familiarly understood, and there can be little doubt that, in almost every instance, the property of a deceased is returned for taxation as his estate. The executor or other legal representative would have the same notice, whether he were named in the warrant or not; nor would the enforcement of the warrant against the property liable to distress and sale, be varied.

It is further objected, that the land was not the estate of Mrs. Hammond, but vested in the plaintiffs at her death. It was returned by Col. Hammond, as it had been ever since the death of Mrs. Hammond. He must be considered the plaintiffs’ agent, and his act their act. if they had returned the property as the estate of Mrs. Hammond, they could not complain that execution had accordingly been levied. If the owner does not return his property nor pay the tax, it is not a subject of just complaint, if, having been returned by his agent in the name of another, the State should proceed against it, as if the return was true. It would cause extreme embarrassment, if the tax collector were required to look beyond the return, and investigate the legal title to all the property returned for taxation, at the peril of a trespass, and of an ineffectual levy. The property, whoever may be the owner, is chargeable for the assessed tax, which justifies a levy and sale, if it be not paid; and no injury can be done, in a case like the present, to any citizen who properly respects his obligation to the State, for the payment of his portion of the common charge of the government, or who exercises the most ordinary vigilance over his property.

Yery strict and technical adherence to forms, should not be required from a class of public functionaries, whose duties are not commonly supposed to require any peculiar qualifications, and the term of whose office is so short and precarious, that few derive a knowledge of its duties from experience. If the process which the tax collectors are authorized to issue, does, in substance and effect, comply with the provisions of law, and afford to the owner of property the notice which may be necessary for its protection, formal and technical exceptions may, without inconvenience or danger, be disregarded. In this case, Cob Hammond had ample notice of the proceeding under the warrant. It was lodged with the sheriff in May, and he was notified of it. The sale, advertised for September, was postponed two months. One .or more of the plaintiffs also had notice. No means of protection, which could have availed if the name of the trustee had been inserted in the warrant, have been lost by the omission.

But the plaintiffs cannot retain the verdict. The action cannot be supported for the recovery of the land, on account of the misjoinder of the plaintiffs, several having conveyed their interest in the land before the action was brought. A non-suit for this cause was refused at the trial, on the ground that the action might be maintained for the mesne profits before alienation. The sale, under the execution, was supported by the Circuit Judge; and the sheriff’s deed held to transfer to the defendant a good term for years. The defendant’s purchase, however, was allowed as a defence to the recovery of rent, only from the execution and delivery of the deed, which created the term. Butin McCall vs. Campbell, MS. cases,Dec. 1843, it was decided that a sheriff’s conveyance to a purchaser, many years after the sale, put the purchaser in the same condition he would have been, had the title been executed cotemporaneously with the sale ; and a verdict for mesne profits, between the time of the purchase and-the execution of the title deed, was set aside. The defendant, in this case, did not enter until after the purchase from the sheriff. The plaintiffs, therefore, cannot recover mesne profits — and a non-suit is ordered.

Richardson and O’Neall, JJ. concurred.

Evans and Wardlaw, J'J. We dissent, on the ground that the sheriff’s sale was void, as made under a void execution.  