
    *Chapman v. Doe, e. d. Bennett.
    October, 1830.
    (Absent Btíooke, F.  and Coaltisr, J.)
    Ejectment — Error in Patent — Evidence—Case at Bar. -In ejectment for land in Wood county, lessor of plaintiff claims under grant of land described in tbe patent as lying in Monongalia; defendant skews by tbe statute of 1784, dividing Monongalia and establishing Harrison county, and other evidence, that the land described in the patent, at the date of the patent, lay not in the then county of Monongalia, but in that of Harrison, and xhat no part of the present county of Wood was then part of Monongalia; U ia.D, competent to plaintiff to prove, that the land in wood was the same land granted by the patent, notwithstanding the error of the patent as to the county it lay in.__
    Same — Defendant Claims under Tax Sale — What He Must Show. — Defendant in ejectment claims under a sale made by a sheriff in 1815, under the statute of 1814, for taxes in arrear, and shews the return of the land as delinquent, and the sale made by the sheriif, without shewing that the sheriff had strictly pursued the statute in the steps preparatory to the sale: Held, this is not enongh to divest the title of the original owner.
    Tax Sale — Who Hay Make. — Under the statute of 1813-14 for sale of lands forfeited for non-payment of taxes, the deputy sheriff as well as the high sheriff is competent to make much sales.
    Ejectment by Bennett against Chapman, in the circuit court of Wood, for S00 acres of land in that county. At the trial, Chapman took three exceptions to opinions of the court:
    1. Bennett adduced in support of his title, a grant from the commonwealth, dated the 21st April 1785; founded on a survey of the 2d August 1784, granting the land in question to Smith Slaughter, under whom Bennett claimed, and describing it as lying in the county of Monongalia. Whereupon, Chapman offered to prove, by the act of assembly of the 24th June 1784, for dividing the county of Monongalia and establishing the counÍ3' of Harrison, and the subsequent act for establishing the county of Wood, and other evidence, that, at the date of the grant of April 1785, no part of the present county of Wood lay within *the boundaries of the then county of Monongalia. But the court allowed the grant to be read in evidence to the jury, being of opinion, that it was competent to Bennett to shew by evidence, that the land claimed was the same land thereby granted to Slaughter, though it did not lie within the boundaries of the county of Monon-galia as established by the act of June 1784, but within the boundaries of the county of Harrison as established by that act, and within the county of Wood, after that county was laid off and established. Chapman excepted.
    2. The grant to Slaughter having been read in evidence, Bennett shewed a conveyance of the land by Slaughter to him, dated the 1st August 1797. And then Chapman shewed, on his part, that the land had been returned as delinquent, in the name of Bennett, for non-payment of the land tax in 1812 and 1813, and that, in the list of sales of delinquent lands and lots in Wood, made in 1815, under the act of assembly of the 9th February 1814, 499 acres of this tract of 500 acres were reported as sold to Chapman for one dollar and sevent3T-four cents; and he proved by Taverner, a deputy sheriff of Wood county for the year 1815, that he had sold the 499 acres to Chapman, he being the highest bidder, at auction, on a court-day, at the court-house; and, without offering any proof that the particular provisions of the act of February 1814, preparatory to such sales had been complied with, Chapman prayed the court to instruct the jury, that if it should be satisfied, that the 499 acres were parcel of the tract of 500 acres granted to Slaughter and by him conveyed to Bennett, then Bennett’s title to the 499 acres was divested by the act of February 1814, and the sheriff’s sale to Chapman in 1815. But the court refused to give such instruction to the jury; and Chapman excepted.
    3. Then Chapman, to shew title on his part, offered in evidence, a deed executed by Taverner, deputy of Spencer, sheriff of Wood for 1815, dated the 12th August 1815, and duly recorded in the county court in September following; *whereby, Taverner, the deputy sheriff, reciting, that he had, on the 8th August 1815, being a court day, at the court-house, after advertisement duly made according to law, sold to Chapman 499 acres parcel of the tract of 500 acres, returned delinquent, in the name of Bennett, for non-payment of the land tax of 1812, and 1813, conveyed the 499 acres to Chapman. But the court would not permit this conveyance to be read in evidence to the jury, on the ground, that the deputy sheriff was not authorised by law to make such conveyance: to which opinion Chapman excepted.
    Verdict and judgment for Bennett; from which Chapman appealed to this court.
    R. G. Scott, for the appellant,
    made no objection to the opinions of the circuit court on the points stated in the first two exceptions; but he contended that the court erred in holding that the deputy sheriff was not authorised by law to make sale and conveyance of lands forfeited- for the land taxes. He referred to the statute of February 1814, directing sales of delinquent lands, 2 Eev. Code, app. IV. ch. 24, § 20, 24, 25, p. 547, 9. And he said, that the proceedings being merely ministerial throughout, the deputy sheriff was as competent as the principal, to every act, and among the rest, to the making of the conveyance. 6 Bac. Abr. Sheriff. H. 3, p. 154, 5; Wroe v. Harris, 2 Wash. 126; Rockbold v. Barnes, 3 Rand. 473.
    No counsel for the appellee.
    
      
      JUe was prevented by sickness from taking his seat at the beginning of this term.
    
    
      
      EJectment— See generally, monographic note on "Ejectment” appended to Tabscott v. Cobbs, 11 Gratt. 172.
    
    
      
      Tax Sales — What Purchaser Must Show, — As holding that, under a sale made by a sheriff under the statute of 1814 for taxes in arrear, the one claiming under the sheriff's deed must show that the sheriff strictly pursued the statute in the steps preparatory to the sale, the principal case was cited in Hays v. Heatherly, 36 W. Va. 629, 15 S. E. Rep. 229. See, in accord, foot-note to Wilsons v. Bell. 7 Leigh 22. But san foot-note to Flanagan v. Grimmet, 10 Gratt. 421.
    
    
      
      Same — Who Must Make Deed to Purchaser, — See, citing principal case, Flanagan v. Grimmet, 10 Gratt. 429, 430, 431. See also, foot-note to Wilsons v. Bell, 7 Leigh 22; foot-note to Flanagan v. Grimmet. 10 Gratt. 421.
    
   GREEN, J.

The opinions of the court below stated in the first two exceptions were unquestionably correct, and indeed are not seriously questioned by the appellant’s counsel.

The third exception presents the naked question, Whether under the act of February 1814, a deputy sheriff was competent to sell and make a valid conveyance of lands, returned delinquent for the non-payment of taxes accruing in 1812 and 1813?

*In 1781, the first act was passed authorising the sale of land for taxes. 2 Rev. Code, app. IV. ch. 1, p. 508. That act authorised the sheriff or collector appointed in his place, under certain circumstances, to distrain and sell for all taxes, lands as well as slaves, goods and chattels. It continued in force until 1790, the mode of selling lands distrained for taxes, being variously modified and controlled by several subsequent statutes, the most material of which, and the only one that touches the question under consideration, is that of Oct. 1787, 12 Hen. stat. at large, ch. 42, p. 564, reciting that various oppressions had been practised in the sales of land for taxes, provided, among other things, that all such sales should be made by the high sheriff or collector in person, and not by deputy. In 1790 an act was passed repealing all laws authorising the sale of lands for taxes, and declaring all lands, upo.n which the taxes shall remain unpaid for three years, to be forfeited and vested in the commonwealth, and liable to be taken up as waste and unappropriated lands might be. 2 Rev. Code, app. IV. ch. 6, p. 517. This right to locate such lands, was taken away by the act of 1807 (Id. ch. 16, p. 530,) by which, and various other acts, both before and after, time was given for the redemption of such forfeited lands, up to the end of the session of assembly of 1813-14. By an act passed in that session, (Id. ch. 24, § 45, p. 553,) the sheriffs were directed to collect all the arrearages of taxes upon lands, due before 1814, and to proceed therein, by distress, by sale of the land, and in every respect whatever, to perform the same duties as if they were part of the arrearages of the year 1814, changing only the form of his advertisements and returns, so as to suit the case. The same act (§ 23, 24,) directed, that, in the year 1815, and in every year thereafter, the sheriff of each county should be charged with the collection of the delinquent land taxes of the preceding year, and that he should advertise the sale of all delinquent lands, at the May, June and July courts, to- take 'place on the first day of the succeeding August court. The act gives the literal terms of the advertisement, thus: “Notice is hereby *given, that &c. I shall sell’’ &c. to be signed, “A. B. sheriff of -county, or A. B. deputy for-sheriff of-- county.” And it directs that the sheriff shall, on behalf of the commonwealth, execute a deed to the purchaser &c. This act also repeals all other acts coming within its purview.

If the question depended upon this last act only, I think there could be no doubt but that the sale and conveyance of such lands might be made by deputy. Such was the practical construction of the former laws, giving the power, in such cases, to the sheriff or collector by those names only, to sell and convey, which occasioned the provision of the act of 1787, requiring the sheriff or collector to act in person and not by deputy upon such occasions. And the construction was in conformity to the rule properly laid down by the court in Wroe v. Harris, that all ministerial duties of the sheriff (of which this is one, as much as the execution of a writ of elegit or of ad quod damnum, both of which require the seal of the sheriff, as well as his conveyance under a sale for taxes) may be executed by deputy, while his judicial duties can only be exercised in person, they being incapable of deputation! Besides, the act of February 1814, obviously contemplated, that the deputy is authorised to sell, and consequently to convey, by giving the terms of an advertisement of sale to be made by him as deputy.

Then, the only inquiry is, Whether the effect of the act of 1814 is controlled bj the general provisions of the act of 1787? I think not. The act of 1787 was virtually repealed by that of 1790, which repealed all laws authorising a sale of lands for taxes; or, if not by that act, by the act of 1814, which conflicts in this particular with it, and repeals all prior acts coming within its purview.

The rejection of the deed mentioned in the third exception, upon the ground therein stated, was erroneous, and the judgment ought for this cause to be reversed.

The other judges concurring, judgment reversed, and cause remanded for a new trial &c.  