
    Wilsons v. Doe e. d. Bell.
    January, 1836,
    Richmond.
    Taxes — Forfeiture of Lands for Nonpayment — Sale-Conveyance. — Under the statute of the 9th February 1814, concerning- taxes on lands, the sheriff or any of his deputies has authority to make sale of lands forfeited for non-payment of taxes; "but whichever office makes the sale, that office alone is competent to convey the land to the purchaser.
    Same — Same—Same —Effect of Deed Which States Sale and Conveyance Made by Different Officers. — Therefore, a deed, in such case, reciting that the sale was made by the sheriff, but executed by a deputy for his principal, and acknowledged by the deputy for registry as his the deputy’s own deed, whereby the land sold is conveyed to the purchaser, is ineffectual to convey the title, and is not evidence for the purchaser, in ejectment against him for the land, brought by the original owner.
    Ejectment, in the circuit court of Surry, for a message and thirty-four acres of land in that county, brought by Bell against John Wilson in his lifetime, who appeared and pleaded, and then died pending the action; whereupon, it was revived by scire facias (under the statute, 1 Eev. Code, ch. 128, l 37, pp. 496, 7), against Delia and Mary Ann Wilson, his devisees, who also appeared and pleaded the general issue, and put themselves upon the title, in the usual form.
    
      At the trial, the defendants, in order to prove that John Bartle, a deputy of Beverley Booth sheriff of Surry, had sold the land for which the action was brought, to Walter Cocke, under whom the defendants ■ claimed, offered in evidence a copy of a deed dated the 31st *August 1815, purporting to be a deed of Booth the sheriff to Cocke, by which, — after reciting that the. land had been returned delinquent for non-payment of taxes for the year 1798, in the name of Benjamin Atkinson, which taxes with ten per centum per annum damages thereon amounted to forty-eight cents, and that Booth the sheriff had, in pursuance of the statute of the 9th February 1814 “concerning taxes on lands,” after due advertisement according to the statute, offered for sale at public auction, at Surry August court 1815, so much of the land as would satisfy the taxes in arrear and the damages, — at which sale Cocke became the purchaser of the whole tract,'— Booth, in consideration of the premises, and of the sum of forty-eight cents paid him by Cocke, conveyed the whole tract to him in fee; but this deed was executed, not by Booth, but by “Bartle deputy for Booth sheriff,” and was recorded on Bar-tie’s acknowledgment thereof as his own act and deed. Whereupon, the plaintiff objected to the admission of the deed as evidence, and the court sustained the objection, on the ground that the deed was not the deed of Bartle; and the defendants excepted to the opinion.
    There was a verdict and judgment for the plaintiff, from which the defendants appealed to this court.
    Allison, for the appellants,
    said there was no doubt, that under the statute of February 1814, a deputy sheriff, as well as his principal was authorized to sell, and to convey, lands forfeited for non-payment of taxes; Chapman v. Bennett, 2 Beigh 329. But though this was a mere ministerial act, to which the deputy was competent, yet, as in all like cases, the deputy was bound to proceed in the name of his principal. And this was what had been done in this case: the deputy had sold in the name of the sheriff, as he ought, and then conveyed in his name, and executed the conveyance for him.
    Johnson, contra,
    maintained, that the instrument in question was not the deed of either Booth the sheriff, or *of Bartle the deputy; not of Booth, for he did not execute it; not of Bartle, for though he executed it, the deed recited that the land had been sold by Booth, and purported to be the conveyance of Booth. Though a deputy sheriff may sell and convey lands forfeited for taxes, under authority of the statute, this was not one of those ministerial functions, which, by the common law, a deputy sheriff might perform for and in the name of his principal, but a special agency for the commonwealth, confided to the sheriff, or to his deputy, by the statute. If the sheriff made the sale, he alone could make the conveyance; if the deputy made the sale, he alone was the proper person to convey: Rockbold v. Barnes, 3 Rand. 474.
    
      
      Tax Sales — Who Must Make Deed to Purchaser.— For the proposition that, the officer who makes the sale of land for delinquent taxes must make the deed, the principal case is cited in Flanagan v. Grimmet, 10 Gratt. 439, and note-, Miller v. williams, 15 Gratt. 226.
      Same — What Purchaser Must Show. — In Cook v. Lasher, 73 Fed. Rep. 707, it is said: “In Wilsons v. Bell, 7 Leigh 22, in which the question was the validity of a sale of land for the nonpayment of taxes, the court said: ‘These sales and purchases founded on forfeitures deserve no indulgence from the court. It is therefore the well-settled law that he who claims under a forfeiture must show that the law has been exactly complied with.’” To the same effect the principal case Is cited in Hays v. Heatherly, 36 W. Va. 629. 15 S. E. Rep. 229; Bond v. Pettit, 89 Va. 489, 16 S. E. Rep. 666; Boon v. Simmons. 88 Va. 265, 13 S. E. Rep. 439; foot-note to Jesse v. Preston. 5 Gratt. 121.
    
   CARR, J.

These sales and purchases founded on forfeitures, deserve no indulgence from the court. It is, therefore, the well settled law, that he who claims under a forfeiture must shew that the law has been exactly complied with. Here, a tract of land forfeited, as it is said, for non-payment of taxes, is bought for forty-eight cents. The sale is made by the sheriff; the deed purports to be made by himj but his deputy executes it. The court refused to let this deed go to the jury; and I think properly. The law, I think, never meant, that where the sale had been made by the sheriff, the deed could be made by one of his deputies. The case of Chapman v. Bennett has decided (and I believe properly) that a deputy, where he has sold, may convey; but this is a different case. And here, it will be remarked, he has acknowledged the deed as his own. 1 think the judgment should be affirmed.

BROCKENBROUGH, CABEBB and BROOKE', J., concurred.

TUCKER, P.

I also concur. The case of Chapman v. Bennett has settled the point, that under the act of 1814, a deputy sheriff is competent to sell and make a *valid conveyance of lands returned delinquent for non-payment of taxes. But, without controverting that decision, I think it may be safely affirmed, that the sale and conveyance must be made by the same person. It would be altogether irregular to permit the deputy to convey what had been sold by the sheriff, or the sheriff to convey what had been sold by the deputy. Admitting that the law has authorized either to act, which we must do under the above cited decision, yet there is nothing in the law from which we can fairly infer, that the legislature designed to introduce the confusion of permitting the sale of one to be completed by the conveyance of the other. So far from it, the statute requires the officer “to execute a deed to the purchaser at the sale, reciting the circumstances thereof;” a requisition which fortifies the natural supposition, that he who makes the sale is to make the title. In this case, the sale is recited to have been made by the sheriff, and the grant or conveyance purports to have been made by him. Yet the deed is signed by the deputy and acknowledged by him, not as the act of, the sheriff, but as the act of the deputy himself. It is not necessary to decide whether he could have acknowledged it as the act and deed of Booth; which I very much doubt, as it is contrary to received principles, that one man should execute a deed for another without authority by deed. But as the deed is only acknowledged by the deputy as his own deed, and contains no grant or conveyance from him, and as indeed he could not lawfully convey what the sheriff himself had sold, I think the deed was properly rejected. I will add, that these laws of forfeiture ought to be strictly construed, and that there should be no leaning in favour of a transaction, by which a tract of thirty acres of land is sacrificed to a purchaser, for forty-eight cents.  