
    
      Taylor &c. v. Burdett &c.
    August, 1840,
    Lewisburg.
    (Absent Brooke and Parker, J.)
    Evidence — Land Patents — When Not Admitted — Statute. — The act of April 1, 3831 declared, that in a suit for the recovery of land lying west of the Alleghany, against a person bona fide claiming such land under a grant from the commonwealth issued previously to the act, who has had the land duly entered, and has paid all the taxes chargeable upon it, his adversary shall not be allowed to give his grant in evidence, unless he shall shew that he too has had the land duly entered and charged with taxes according to law, and has actually paid the taxes charged and justly chargeable upon it. Per Tucker. P„ this act is constitutional.
    Same — Same—When Admitted — Case at Bar. — In a suit against a defendant holding land lying west of the Alleghany, under a grant from the commonwealth issued previously to the act of 1831, it appearing that he had had his land duly entered, and had paid all the taxes chargeable upon it, the circuit court refused to allow his adversary to give his grant in evidence ; but the court of appeals, being of opinion that he too had shewn that he had had the land duly entered and charged with taxes, and had paid the taxes chargeable upon it, reversed the judgment.
    Ejectment in the circuit court of Kanawha comity, in the name of John Doe, claiming in one count upon the demise of Thomas O. Taylor, and in another upon the demise of Adam Altz. Charles Burdett and Archibald Burdett were admitted defendants, and pleaded the general issue. On the 18th of May 1835, a jury was impanelled to try the cause.
    At the trial, the defendants gave in evidence a grant made by the commonwealth on the 11th of April 1825, to David Shirkey anc Granberry Samuels, for a tract of 300 acres, and a deed bearing date the 28th of December 1830, from David Shirkey and wife, conveying an undivided moiety of the said 300 acres to Archibald Burdett and Nates Eegg. And the said defendants proved that the land in controversy was embraced by this deed ; that the land embraced in the deed was in the actual possession of Shirkey from the time of the grant till the date of the deed, and in the possession of the defendants ever since the deed was made ; that the land mentioned in the grant had been duly entered on the boohs of the commissioner of the revenue of Kanawha county, where the land was situated, from the time of issuing the said grant to this time ; and. that Samuels, Shirkey, and the defendants, had paid and discharged all the taxes charged or justly chargeable thereon against them, since the issuing of the said grant. Thereupon the plaintiff produced a grant made by the commonwealth on the 16th of June 1786, to Thomas Augustus Taylor, for 30S1 acres ; under which grant the plaintiff claimed the land in controversy. And in order to be allowed to give said grant in evidence to the jury, the plaintiff proved that Thomas O. Taylor, one of the lessors of the plaintiff, is the only child and the heir at law of the said Thomas Augustus Taylor, who had died before the institution of this suit; and he produced the following papers, to wit: a receipt, of the 28th of August 1834, given by John Adams Smith, the chief clerk in the auditor’s office, then acting as auditor, shewing that, pursuant to the 27th section of an act passed on the 10th of March 1832, concerning delinquent and forfeited lands, Thomas O. Taylor had paid in advance, for the year 1834, the taxes on several tracts of land, one of which was the said tract of 3051 acres, and that the payment was credited to the sheriff ■of the county ; -at the foot of which receipt it was certified, that the taxes on said lands had been released by law, to 1831 inclusive, and that the same had not been returned delinquent to the auditor’s office for the years 1832 and 1833, and were only charged on the commissioner’s books of Kanawha for the year 1834, in Thomas O. Taylor’s name : also a certificate of the commissioner of Kana-wha county, bearing date the 26th *of February 183S, stating that Thomas O. Taylor did enter on the commissioner’s books certain tracts of land, one of which was the tract of 30S1 acres, and that he had charged the taxes on the said tracts for the years 1832, 1833 and 1835, on his land book for 1835, without charging damages; and that the said tracts were entered on the books in May 1834, and were so certified by him to the auditor in the books of that year : also a receipt of the auditor, bearing date the 18th •of March 1835, shewing that Taylor paid the taxes of 1832, 1833 and 1835, which payment was in advance of the revenue of 1835, and would be passed to the credit of the sheriff : and likewise the official printed list of the auditor of public accounts, dated the 24th of August 1831, purporting to be a list of lands and lots returned as delinquent for the nonpayment of taxes for the year 1820, and prior thereto, and redeemable on or before the 1st of January 1832 ; by which list it is shewn that the land mentioned in the said grant to the said Thomas Augustus Taylor was returned delinquent for the nonpayment of the taxes thereon in the year 1811. And no other evidence being offered by the plaintiff to show that the land mentioned in said grant, and claimed by him in this suit, had been duly entered on the books of the commissioner of the revenue in the county where it was situated, and charged with taxes according to law, or that he, or those under whom he claimed, had actually paid the taxes charged and justly chargeable thereon, the defendants objected to the grant so offered by the plaintiff going in evidence to the jury ; and the said objection being referred- to the court, the judge was of opinion that the defendants had shewn themselves bona fide claiming the land in controversy, mediately, under a grant from the commonwealth issued before the first day of April 1831, and had had the land so claimed by them duly entered on the books of the commissioner of the revenue, and had paid and discharged *all taxes charged or justly chargeable thereon since the date of the patent under which they held as aforesaid; and that the plaintiff, on his part, had not shewn that he, and those under whom he claimed, had had the land, so by him claimed, duly entered on the books of the commissioner of the revenue, and charged with taxes according to law, or that he or they had actually paid the taxes justly chargeable thereon, so as to authorize him to give in evidence the grant from the commonwealth under which he claimed title as aforesaid, according to the provisions of the 17th section of the act passed the 1st of April 1831, entitled “an act concerning lands returned delinquent for nonpayment of taxes, and making disposition of certain lands so delinquent, and of certain escheated lands, for the benefit of actual and bona fide holders thereof under grants from the commonwealth and therefore sustained the objection made by the defendants, and excluded the said grant to Thomas Augustus Taylor from going in evidence to the jury. To which opinion the plaintiff excepted.
    The jury found a verdict for the defendants, and judgment was rendered for them ; to which, on the petition of the plaintiff, a supersedeas was awarded.
    Johnson for the plaintiff in error.
    B. H. Smith for defendants in error.
    
      
      Land Patents. — The principal case is cited in Ushers v. Pride, 15 Gratt. 196 ; Cecil v. Clark, 44 W. Va. 673, 30 S. E. Rep. 221.
    
   TUCKER. P.

I do not think that in this case the plaintiff’s patent should have been rejected, as there was, to my mind, satisfactory evidence that he had in all things complied with the law.

In the act passed April 1, 1831, (Acts of 1830-31, ch. 28 ; Supp. to Rev. Code, ch. 287,) it is provided by the 17th section, that in a suit for the recovery of lands lying west of the Alleghany mountain, against a person bona fide claiming such lands, medi-ately or immediately, *under a grant from the commonwealth issued previously to the act, who has had the lands duly entered, and has paid all the taxes chargeable upon them, his adversary shall not be allowed to give his grant in evidence, unless he shall shew that he too has had his lands duly entered and charged with taxes according to law, and has actually paid the taxes charged and justly chargeable upon them. Has the plaintiff in this case done so?

First, as to entering the land with the commissioner. This was first required by the act of 1810 ; and accordingly it appears that the lands were on the commissioner’s books in 1811; for they are on the auditor’s list, as delinquent for that year. Now, if they were once on the books, it would seem that this duty was fulfilled, as it was not required to be repeated every year. But be this as it may, on the 26th of February 1835, Thomas O. Taylor, the plaintiff, entered the lands again in his own name, as appears by the certificate of commissioner Wilson. That commissioner further proceeded, according to law, to charge the' tax on the lands for the year 1835, and also those for the back years 1833 and 1832, (that for 1834 having been previously paid in advance into the treasury, as appears by the auditor’s receipt). Why did he not go farther back ? Why did he not charge the taxes for the years anterior to 1832, back to 1811 ? Doubtless because they had before that time been already charged, either to Thomas O. Taylor or Thomas Augustus Taylor ; for the lands had been listed in 1811 in the name of Thomas Augustus Taylor, and must be presumed to have continued so on the books until they were listed by Wilson, in 1835, as Thomas O. Taylor’s. When any thing is entrusted to an officer to be done, the law presumes omnia rite acta, unless the contrary appears. Phillipps on Evid. 614 ; Starkie on Evid. part 2, p. 172. Here we are not at liberty to doubt that Wilson would have proceeded to enter and charge the taxes anterior to 1832, unless they had been already so entered and charged.

*Hext, as to the payment. It is admitted that all the taxes subsequent to 1831 have been paid; and it only remains to enquire whether those of 1831, and anterior, have been also paid or released. The evidence is satisfactory to my mind that they were released. By the act of March 10, 1832 it is provided, that if the amount of taxes, exclusive of damages, charged upon any tract of land returned delinquent for the year 1831 or any prior year, shall not exceed ten dollars, they should be by that act relinquished and forever discharged. To establish the fact that his lands were exonerated by this act, the plaintiff has introduced the certificate of John Adams Smith the acting auditor. On this certificate two questions present themselves.

1. Is the certificate, being that of the clerk and not of the auditor, admissible evidence? This can admit of no doubt. In case of sickness or absence of the auditor, the chief clerk in the auditor’s office is required to perform the duties of the office; and the certificate being signed by J. A. Smith as chief clerk and acting auditor, I must presume he was acting by reason of the sickness or absence of his principal.

2. Does this certificate establish the fact that the taxes on this land were released by law? If the evidence is competent, there seems to be no reasonable doubt of its sufficiency; for the officer whose duty it was to receive the treasurer’s receipt for the taxes, and to give the landholder his receipt for them, has certified that for 1831, and the years preceding that, the taxes were released. An attention to the formula in such cases will render this matter more clear. The landholder wishes to pay off his taxes to the state, at the treasury; which he is expressly authorized to do, “upon the certificate of the auditor of public accounts authorizing the treasurer to receive the same.” 2 Rev. Code, ch. 183, 87, p. 38. Accordingly, he first goes to the auditor, and states his desire to pay the taxes upon his *land. It is the auditor’s duty to examine the commissioner’s books on file in his office, ascertain the taxes due upon the land, and issue his order or warrant to the treasurer to receive the amount. The treasurer does receive the amount, for which he gives his receipt. This receipt is handed to the auditor, who takes it up, and gives in lieu of it his own receipt; and that closes the transaction. That receipt of the auditor is a quietus to the party. In the performance of these duties, the auditor must examine the commissioner’s books, he must ascertain what is due; he must therefore, in that examination, decide whether the lands of the party are or are not exonerated by the act of March 10, 1832. If not exonerated, the amount due for them should be certified, that it may be paid. But he cannot decide whether they were exonerated, without ascertaining that the taxes anterior to 1832 did not exceed ten dollars. In the fulfilment of his duty, he must then have ascertained that fact from the books, and must have known that it was a fact when he so certified. The evidence therefore was sufficient. Was it competent? I think it was. The competency may be inferred from what has been already said. The duty of the auditor is to examine the books and ascertain the taxes due. Those which are released are not due. Of those charged, then, he must ascertain what are released. And when a quietus is demanded by the landholder, to which he is certainly entitled when he has paid all that is due, what is the auditor to give? If he is to give a receipt or quietus for those taxes which are paid, is it not within his province to give also a certificate that the other taxes, which were charged on the books, have been released? If the receipt is evidence of payment, why should not the certificate of the officer whose duty it is to decide what is due, be proper evidence of what has been released? It is his business to examine and to judge whether the arrears before 1832 were under *ten dollars, and were therefore released; it was the party’s right to have evidence of that fact; and it was therefore competent for the auditor to give it'.

I am therefore of opinion that the patent was improperly rejected.

As to the other question, as I have not a shadow of doubt of the constitutionality of the law, and as it is not necessary to be decided, I shall not enter upon a consideration of the elaborate argument on the subject. Suffice it to say, that it has not had the effect of shaking the opinion I have always entertained, that however harsh many of our land laws may seem, it was fully competent to the legislature to pass them. The act in question is one of those, and harsh as it may be, it is the law of the land, which we must respect. I am not sure that it will not, upon the whole, be beneficial

PER CURIAM, Judgment reversed, and cause remanded for a new trial.  