
    Rockbold v. Barnes. The Same v. Dyar.
    October, 1825.
    •Sale of Land — Delinquent Taxes —Conveyance by Deputy Sheriff. — Where land is sold by a deputy sheriff for his principal for non-payment of taxes, and a conveyance made by the deputy, U is indispensably necessary to prove, that the one is sheriff and the other his deputy.
    These were two appeals from the Superior Court of Wood county. The cases are precisely similar in their circumstances, and depend upon the same question. They were two writs of right brought by Rock-bold, who claimed two tracts of land, which had been sold by Thomas Tavenner as deputy of J. Spencer, high sheriff of Wood county, for non-payment of taxes. Deeds were executed by Tavenner to Rockbold, who became the purchaser at the sale. These deeds recite that Tavenner is deputy sheriff oí J. Spencer, sheriff of Wood county, and signed by Tavenner in the same manner. At the trial, the tenants moved the Court to instruct the jury, that the deeds *produced were not, of themselves, sufficient evidence of title in the demandant to enable him to recover. The Court gave the instruction, and the jury found for the tenants. Judgment was given accordingly, and Rockbold appealed.
    Scott, for the appellant,
    contended, that the deputy was competent to execute the deeds, as it was merely a ministerial act. Wroe v, Washington, 2 Wash. 126; 6 Bac. Abr. “Sheriff,” 154-5; Acts of 1814, § 20, 24, 25.
    Hay, for the appellee,
    admitted that the deputy might execute the deeds in this case, but said that they were void for uncertainty in the description of the land, and that there must be some evidence that the person professing to be deputy, was so in fact.
    October 19.
    
      
      For monographic note on Taxation, see end of case.
    
    
      
      Sale of Land — Delinquent Taxes — Conveyance by Deputy Sheriff — What Party Claiming Thereunder Must Show. —A party claiming- title under a deed from a deputy sheriff for land sold for the nonpayment of taxes under the act of February 9th 1814, must show that the person described as high sheriff was such, and the grantor in the deed was his deputy. Hobbs v. Shumates, 11 Gratt. 518, 520: citing principal case. To the same effect, the principal case is cited in Flanagan v. Grimmet, 10 Gratt. 429, 481; Miller v. Williams, 15 Gratt. 225; Hays v. Heath-erly, 38 W. Va. 628, 15 S. E. Rep. 229.
    
    
      
      The President,- absent.
    
   JUDGE GREEN,

delivered his opinion.

These two cases are precisely the same in all their circumstances. The demandant claimed the land in controversy, under a patent to Abraham Thomas. The patent is set out in the first bill of exceptions, and it is therein stated, that the patent is for the land in controversy. He also introduced a deed from Abraham Thomas to Michael Thomas; and a deed dated August 16, 1815, from Thomas Tavenner, professing to be deputy sheriff for J. S. Spencer, sheriff of Wood county, to the demandant, reciting that he had sold a tract of land belonging to Michael Thomas, returned delinquent in the name of Michael Thomas, for the non-payment of taxes, for several years; and that the demandant was the purchaser thereof; and conveying to him a tract of land of 400 acres in Wood county so sold, being a tract of land late the property of Michael Thomas, and sold as aforesaid for delinquency of taxes. The tenant moved the Court to _ instruct the jury, whether the last-mentioned indenture, with _ the deeds mentioned in *the first bill of exceptions, was sufficient evidence of title in the demand-ant, to enable .him to recover in this cause. The Court being of opinion, that the last-mentioned deed was not, of itself, sufficient evidence of the transfer of the land in controversy, from Michael Thomas, jr. to the demandant, instructed the jury accordingly; to which, the demandant excepted, and the jury found for the tenant. The only question in the cause, is, whether this intruction was right.

It was indispensably necessary, in order to give the effect to' this deed of transferring the title of Michael Thomas to the demandant, that J. Spencer should have been sheriff of Wood county, and Thomas Tavenner his deputy, at the time that the advertisement and sale were made; and without proof of those facts, the deed was not, of itself, sufficient evidence, that the title of Michael Thomas was vested in the demandant. The instruction was, therefore, right, and the judgments are respectively to- be affirmed.

The other Judges concurred, and the judgment was affirmed.  