
    David Kemper et al. v. James McClelland’s Lessee.
    Where two counties were attached for the purposes of taxation, the commissioners, by the tax law of 1827, were to be governed in fixing the per centum, by the aggregate value of all property entered upon the list for taxation, and if they established at any time a higher rate than the law authorized, all tax sales to pay such rate are void.
    This is a writ of error to the Court of Common Pleas of Hardin county.
    The defendant in error brought an action of ejectment in the court below, against the plaintiffs in error, claiming title to the lands in controversy under a patent from the United States, dated the 25th of January, 1823, granted to the heirs and legal representatives of Benjamin Forsythe, for 6061- acres of land situated in Hardin county.
    The defendants were in possession, holding by virtue ot a tax title.
    The tax sale took place on the last Monday of December, 1831, at the court house in Logan county, and under proceedings conducted by the county officers of Logan county. At this sale, which was for the taxes, penalty, etc., of the years 1830 and 1831, David Kemper, one of the plaintiffs iii error, purchased 425 acres of the above mentioned 6061 acres, and received a deed therefor, dated the 24th of February, 1849, from the auditor of Logan county. This deed is the foundation of title on the part of plaintiffs in error.
    The cause in the court below was submitted to a jury; and in the progress of the trial a bill of exceptions was taken, for the purpose of showing all the acts of the county officers, and all the proceedings and rulings of the court of common pleas.
    It is as follows :
    Be it remembered, that on the trial- of this cause in the. court of common pleas of Hardin county, Ohio, at the April term thereof, A. D. 1850, the plaintiffs, to maintain the issue on their part, offered in evidence the patent and depositions hereto attached, marked “A” and “B,” and made part hereof, which was received in evidence.
    The defendants then offered in evidence, without proof of execution, the deed, a copy of which is hereto attached, marked “ C,” and made part hereof, to sustain the title of defendants, which was objected to by the plaintiffs, but the objection was overruled by the court. The defendant then offered in evidence two instruments marked “ D ” and “ E,” the execution of which was proved, and the plaintiffs objected to the introduction of the same in 'evidence, but- the court overruled the objection, and received said deeds in evidence.
    The defendants then offered in evidence the deed hereto attached, and made part hereof, marked “E,” and it was agreed that the same should be received in evidence, if a duly certified copy thereof, from the recorder’s office, where it was recorded, would be evidence, and the plaintiff objected to the introduction of the same, but the court overruled the objection, and received the same in evidence. Also the deed marked “ EE,” which was objected to, and the objection overruled. The plaintiff then introduced the 'depositions hereto attached, and made part hereof, marked “ G,” and the same were admitted. The plaintiff also offered in evidence the following records, which were admitted by the defendants to be the records they purport to be, from the auditor’s office, in Logan county, being the records of that office, to wit:
    1. The auditor’s and treasurer’s duplicate of taxes for Logan and Hardin counties for the years 1830 and 1831.
    2. The list of lands returned delinquent by Martin Marmon, treasurer of Logan county, for the year 1830, and of the settlement thereon stated, as made with B. S. Brown, auditor.
    3. The record of the proceedings of the commissioners of Logan county, for 1830 and 1831, and of the taxes by them levied for said years.
    4. The record of the notice of the delinquent tax sale for 1831, purporting to contain list of lands advertised to be sold at delinquent tax sale of 1831, in Logan county, and certificate thereto.
    5. The record of delinquent tax sales for 1831, in Logan county.
    The several papers hereto annexed, it was agreed by the parties, are correct copies taken from said records, and that said copies contain all that is material from the several records aforesaid, to sustain defendant’s deed; but it was agreed that the defendant or plaintiff might, on the hearing of a writ of error in this case, produce and use the original records in evidence as aforesaid, or said copies. The plaintiff then’ proved that the deed marked “ C ” was executed by William Stokes, auditor, etc., without the production of any certificate of sale issued upon the delinquent tax sale of 1831, and without the production of a survey; but it was also proved that diligent search had been made in the auditor’s office of Logan and Hardin counties for such certificate of tax purchase, and that none could be found. The plaintiff also proved that the record of the notice of the delinquent tax sale of 1831, was in the handwriting of George Krouskop, who was the auditor, but that the name of George Krouskop, auditor, was signed in said record at the foot of the notice of sale, in the handwriting of Noah Z. McColloch, and that the certificate of the publication of said notice, made at foot of said record, with the name of George Krouskop, auditor, thereunder written, was also in the handwriting of said McColloch. The defendants then proved that in 1830 and 1831, N. Z. McColloch was cleric of common pleas of Logan county; that he had been auditor prior to 1828 or 1830, and that after Krouskop was elected auditor in 1830, during the years 1830 and 1831, McColloch frequently assisted Krouskop, and gave him instructions in the duties of the office, and assisted him in making tax sales, but the witness could not state that McColloch was a deputy in the auditor’s office.
    The plaintiff then moved the court to rule out all the deeds and instruments in evidence by defendants, both as evidence of title and for all purposes.
    The court ruled out all of said deeds and instruments, so far as they sustained the title of defendants, but received them in evidence and refused to rule them out so far as the defendants claimed under the occupying claimant law.
    The cause being submitted to the jury, a verdict was rendered for plaintiff, and the defendants then moved the court for a new trial, for reasons on file, which motion the court overruled.
    The defendants then made application for the proceedings under the occupying claimant law in their behalf, upon the evidence by them offered, to which the plaintiffs objected, but the court overruled the objection, and made an order for proceeding under the occupying claimant law. The plaintiffs excepted to all the decisions of the court in overruling the objections made by them to defendant’s evidence, in refusing said motions by them made, and in making the order under the occupying claimant law, and in granting motions made by defendants; and the defendants in like manner excepted to the decisions of the court in overruling objections by them made to evidence in granting motions made by plaintiffs, and in refusing a new trial; and the parties respectively prayed the court to sign and seal this their bill of exceptions to all matters as aforesaid, and said exceptions are allowed, and this bill signed and sealed accordingly, and made part of the record.
    
      
      JB. Stanton, for plaintiffs in error.
    It is said' the tax sale under which we claim title is defective:
    1. Because the delinquent list is not sworn to by the treasurer. This objection is answered by the decision of this court in the case of Winder’s Lessee v. Starling, 7 Ohio Rep., part 2, p. 190.
    The jurat to the delinquent list, in this ease, was made by the same officer, under the same law, and is a literal copy of the one which was held sufficient in that case. The court in that case say, page 194: “ There is all the evidence of this fact, and the only evidence which the legislature have thought proper to require by the statute, or in the forms prescribed.” It is sought to take the case at bar out of the authority of that decision, by saying that the forms under which that return was made, were prescribed by the collector, whose office was abolished, and the duties of the office devolved upon the treasurer by the act of January 24, 1827.
    2. It is said that the duplicate footings are not certified by the county auditor. If it was true, we think the objection would not amount to much. But it is a mistake. Certified copies of the duplicate footings for 1830 and 1831, will be found amongst the exhibits.
    3. Because the delinquent list was not returned, nor settlement made with the auditor, on the first Monday of January, A. D. 1881.
    The 8th section of the act of January 24, 1827, 3 Chase 1545, provides that the county treasurer, on the first Monday of January, in each year, shall make his return in the manner prescribed in 'the act defining the duties of county auditor. The second section of the act of February 1, 1825, 2 Chase 1493, prescribing the duties of county auditor, defines the mode of ascertaining delinquencies and making up the treasurer’s return.
    A copy of the settlement made by the treasurer, in January, 1831, is made an exhibit, to which is annexed the certificate of the auditor, stating the sums found in the hands of the treasurer for the several funds in his possession. This certificate bears date the 13th of January, 1831. When the settlemeni was made, does not appear. The “ settlement ” is the examin ation and computation of the delinquencies, to ascertain the amount in the treasurer’s hands. This must, of course, be done before the results of the settlement can be recorded, or the delinquent list sworn to. When this settlement was made, does not appear, nor is it necessary that it should appear from the record. And in the absence of proof, it will be presumed that the officers have done their duty, and that it was made at the time prescribed by law.
    It is said in this connection, that the treasurer’s affidavit to the delinquent list is dated January 13,1830, instead of 1831. This is a mere clerical error, of the kind that is frequently made at the beginning of the year, from the force of habit. But it is abundantly corrected by other parts of the record, and can do no harm. The date is no part of the affidavit, and might have been omitted entirely. It is at best but prima facie evidence of the time when the affidavit was made, and may be, as it is, abundantly corrected by other record evidence in the case. It was made on the 13th of January, 1831, and the law does not require it to be made sooner.
    4. It will be found upon computation, that the auditor, to avoid fractions of a mill or cent, took a fraction from the state and canal tax, and added it to the county and school tax. This, is said to be an overcharge. But the aggregate is precisely right.for both years. The defendant’s taxes are an entire thing,, and if the aggregate is not overcharged he has no cause of complaint. Or, if he insists that the different kinds of taxes were separate and several demands, I answer, that his land was-property sold for the payment of the state and canal tax, which was not overcharged. ^
    5. It is said that the penalty and interest on the taxes off 1830, should have been charged in a separate column on théduplicate of 1831. 3 Chase 1809, § 21, and 1811, § 59, are cited in support of this objection, but they failed to sustain it. I presume no duplicate was ever so made, and that no law required it. It is also said that the taxes of 1831 exceed the levy for that year. That is because the interest and penalty for 1830 is added, which it is assumed cannot be done.
    In this, counsel for defendant in error is mistaken, and hence the objection fails.
    6. “ That the county commissioners levied higher taxes for county purposes, etc., than were authorized by law.”
    The 5th section of the act of January 31, 1827, 3 Chase 1593, provides, that when the taxable property of any county shall not be less than $500,000, nor more than $1,000,000, that the levy for county purposes shall not exceed three mills. When it is less than $500,000, it shall not exceed five mills. The levy was not more than five mills, nor was the taxable property of Hardin county $500,000. But it is claimed that the taxable property of Logan must be added, because Hardin was then attached to Logan. The taxable property of the two counties was over $500,000. This objection turns upon the question whether both counties are to be considered as one, within the meaning of this section of the statute. Hardin county was “ attached ” to Logan (not merged in it) February 12, 1820, 3 Chase 2134. It was, by the same act, erected into a separate county, its boundaries defined, and a name given to it.
    But, as its inhabitants were not then able to support a separate organization, it was “ attached” to Logan, and the officers of Logan county were thereby made ex-officio officers of Hardin county. But, for various purposes, and especially for the purpose of finance and taxation, it was treated by law as a separate county.
    The funds of the counties were to be kept separate. Appropriations for bridges and other local purposes were to be made from the funds of the proper county. And upon the organization of the county attached, a settlement and distribution of the county funds was to be had. 2 Chase 1081. Act of January 11, 1820.
    
      This latter act shows clearly, that for the purpose of taxation, the two counties were regarded as separate. The levy, therefore, was not excessive.
    7. But it is said, if the counties are separate, and the levy not excessive, that, the officers of Logan county had no powei to sell.
    When the fourteen counties in the N. W. corner of the state were laid out and attached to adjoining organized counties, the object and effect was well understood. It was not to withdraw the property within them from taxation; but to give to their scattered population the protection of the laws, without subjecting them to the expense of county organization. By attaching ” them to other counties, the officers of the older counties to which they were attached, became ex-officio officers of the new counties, with the same powers that they had in the counties in which they were elected. Hardin is attached to Logan, “ for all the purposes of taxation.” 3 Chase 1517, $ 4. The powers of taxation include the power to enforce the statutory penalty for the non-payment of taxes. A cotemporaneous construction has been put upon this law, by the state and county officers charged with the execution of the laws, from the time these counties were attached until they were organized. And in Winder’s Lessee v. Starling, 7 Ohio Rep. 190, this court sustained a sale for taxes made by the auditor of Logan county, of land lying in Hardin.
    8. Sundry objections are made to the record of the advertisement of the delinquent list, all of which are fully answered by reference to the record itself, or by the familiar maxim, that all officers will be presumed to have done their duty, until the contrary is shown. The record of the advertisement shows that the delinquent list was published “ four weeks in succession, agreeably to law.” But it is said the words, agreeably to law, are not sufficient to show when the publication commenced, nor when it ended, and that it cannot be known that the publication was between the first of October and the first of December. But the record of the tax sale shows that the delinquent list was published the first time, on the 7th of October, and the last time, on the 28th of October.
    The record, therefore, shows that the law was complied with by publishing four weeks in succession, between the first of October and the first of December. It is no matter in what part of the record you find the evidence of the timo of publication, if it appears from the whole record. Winder’s Lessee, v. Starling, 7 Ohio Rep. 190. It will be presumed that the paper was of general circulation in Hardin county. 7 Ohio Rep. 190.
    9. It is said that the record is not certified and signed in'the handwriting of the auditor.
    The proof shows that these are the genuine records of the auditor of Logan county, and that they are kept in the proper place, and in the custody of the proper officer.
    The certificate and signature in question, purport to ba the certificate and signature of the auditor whose duty it was to make it, and in whose custody the records were then kept. They import absolute verity, and it is submitted with confidence, that they cannot be impeached or contradicted by parol.
    It is further claimed, that if it were competent to go into such proof, and it was shown that the auditor, from accident, or any other cause, stood by, and saw another write his name upon his records, at his request, and he acted upon it, and recognized it as his own act, that it would be good, and the record could not be impeached on that ground. Who ever heard of the record of a court being impeached by proving that it was not in the handwriting of the clerk, or his sworn deputy ? If it is found to be the “ record ” of the court, that closes all inquiry, and no evidence can be offered to contradict it. -This objection cannot be sustained. *
    10. It is said that the record is not certified, and does not purport to be made out by the auditor, or his deputy; and 8 Chase 1811, section 34, is referred to in support of this objection. It will be seen, by reference to this section, that it required a copy of the record of the tax sales for each year, to be made out and certified by the auditor, and sent to the auditor of state. But it does not require the auditor to make a certificate, and incorporate it into the record of sales.
    The record, of course, would not show what copies had been taken from it and certified, and evidence of that fact would not be kept by the county auditor.
    And an exhibit from the auditor of state’s office shows that this was done.
    11. That it does not appear that a certificate of sale was ever issued.
    It is made the duty of the auditor, upon the sale, to give the purchaser a certificate of purchase. If less than the entire tract is sold, the purchaser, after two years, goes with his certificate to the county surveyor, has the quantity sold laid off in a square form in the N. W. corner; and with this certificate and survey, goes to the auditor, and has his deed executed.
    The proofs and exhibits in this case show, that the purchaser, supposing the auditor of Hardin county to be the proper officer to make the deed, procured a deed from him in 1839. It will be presumed, as the fact undoubtedly was, that the certificate and survey were surrendered to him at the time his deed was made. It is the purchaser’s duty to surrender the certificate upon the receipt of a deed, and no one would expect to find him in possession of both. The proof is, that the auditor of Hardin county has lost it, or rather,- that he cannot find it, the law not making it his duty to preserve it. When it is surrendered, and a deed executed, it has performed its office, and is no longer worth preserving. The deeds, with the certificate and survey, furnish at least prima facie evidence, that there was a certificate and survey, which is certainly not rebutted by any proof in the ease. The absence of the certificate and survey furnish no presumption whatever, because they were of no value or importance, and it was nobody’s duty to preserve them after the execution of the deed. ■
    The absence of the record of the survey, in the records of the surveyor of Logan county, comes to nothing.- I doubt whether the law made it his duty to make a record amongst the records of Logan county. But if he did, it would go to the surveyor of Hardin county, upon its organization, and would not be in the hands of his successor, in this county.
    It will be seen from the patent, that the heirs of Forsythe have had title to this land, some twenty-eight years, and have never paid any attention to it, until the commencement of this suit. They cannot plead infancy, for that does not last twenty eight years. If they plead coverture, let them redeem, upon payment of the improvements and taxes, with the statutory penalty, and not seek t« escape it by an action of ejectment. If they are not willing to do this, it will be no great calamity, if they should lose a part of their land.
    It is a duty which the state owes to her resident tax-paying citizens, to enforce the payment of taxes by such penalties as will make it the interest of non-resident landholders to pay their taxes promptly.
    
      William Lawrence & Stillings, for defendants in error.
    The facts sufficiently appear in the bill of exceptions, from which it is manifest that the tax sale was totally void.
    I. No law authorized a sale of the land for non-payment of taxes. The land in controversy is in Hardin county. It was sold for taxes by the officers of Logan county. The law did not authorize them to sell. 3 Chase 2134 — 2147 1517 —1518 and 4 2 Chase 1081 — 3 Chase Stat. 1811 and 32.
    This proceeds, of course, upon the idea that Logan and Hardin are distinct counties; and if they are so regarded, then the tax sale was void, for the law only authorizes officers of Logan county to sell lands in their county.
    
      II. If this construction is not given to the law, Hardin and Logan must be regarded, for all purposes of taxation and tax sale, as one county. If so, the county commissioners levied more tax than was by law authorized. The fifth section of the act of January 31, 1827 (3 Ch. 1563), provides that “ where the aggregate amount of the value of all property entered for taxation,” “ shall be $500,000 or more, and less than $1,000,000, the tax for county purposes shall not exceed three mills on the dollar.” In 1830, the aggregate value of all property entered on the duplicate of Logan and Hardin, was $533,053, and the tax levied for county purposes was 4f. mills, being 1J mills more than was authorized by law. If these two counties, for purposes of taxation, are to be regarded as one county, then too much tax was levied; if not, but as two distinct counties, then all the laws authorizing tax sales, do not apply to, or authorize sales of land in Hardin. These questions were not made in 7 O. R. 190, and have never been decided.
    III. The tax duplicates were insufficient.
    1. They were not properly closed with duplicate footings, and the auditor’s certificates. 2 Chase 1376, 1476, 1493 ; 3 Chase 1543, 1807. It is perhaps sufficient for the purpose of this case to examine the duplicate of 1830, and the law applicable to it. By the act of February 3, 1825, (2 Ch. 1846,) forms are prescribed, which “ shall be pursued by the several officers.” These forms (p. 1491) require duplicate footing, and a certificate signed by the auditor, to close the duplicate. 3 Chase 1563; 7 Ohio R. 190.
    2. The several kinds of taxes are not accurately charged in separate columns. The statute (3 Ch. 1809) requires the auditor to “ charge the state, county, township and road tax, in separate and distinct columns.” This is imperative. It is not now objected that the aggregate amount of taxes is too much, but in one of the duplicates there is five mills too much tax put into the column for county and school tax. If a sale was made for the purpose of paying a mill of tax illegal in kind, then the sale is void. (Beach et al. v. Walker, 6 Cow. 197.)
    3. The duplicate of 1831, does not purport to include the tax, interest and penalty of 1830, and if not, the taxes are overcharged for 1831. It cannot be presumed that this duplicate includes the tax, interest, and penalty of a former year. 3 Ch. 1809, § 21-2; 1811, § 29.
    IV. 1. 2. The delinquent list was not returned, nor settlement made with the auditor, on the first Monday in January. By law, the treasurer is required to settle with the auditor on the first Monday in January, and make his delinquent return. (3 Ch. 1545.) This return can only be made “.within the time prescribed by law,” and within that time the treasurer must “ sign such list and testify to the correctness of the same under oath, to be administered by the auditor.” (2 Ch. 1498 § 2.) He cannot make the return until the oath is made, because without it there is no legal return. In this case the oath is dated January 13, after the time prescribed by law, and the return was then made, for the settlement bears the same date. 'T maintain that the law presumes the date of a recorded transaction to be the actual time of the transaction, and that’ when the record is produced, it must, upon its face, show that the statute has been pursued in time, form, etc. Thatcher v. Powell, 6 Wheat. 127 ; Sherwood v. Read, 7 Hill 431.
    3. The treasurer’s oath to the delinquent return made in January, is defective in two particulars. 1st. Though subscribed by the treasurer, the auditor has failed to affix his jurat. In Winder v. Starling, 7 Ohio Rep. 192, a similar affidavit was held sufficient as to the collection of taxes in 1826, and the treasurer in 1827. The ground of that decision is, that the law prescribes the form of oath (2 Ch. 1491) without a jurat, but the point was not made, or argued to the court, that there is a distinction between the law, as to the old office of collector and the office of treasurer, and the court inadvertently applied the same decision to the oath to be made by both officers. In the absence of any form prescribed by law, a jurat of course will be required. The statute prescribing a form, only applied to the old office of collector, and not to treasurer. The act of January 24, 1827 (3 Ch. 1543), abolished the office of collector and substituted treasurer. By that law (3 Ch. 1547, § 17) the treasurer is required to make his return of delinquencies, according to the act of February 1, 1825 (2 Ch. 1493), in which no form of oath is prescribed, and he is not governed by the act of February 3, 1825 (2 Ch. 1486), prescribing a form, as was the collector. As to the treasurer, then, the case in 7 Ohio Rep. must be overruled.
    Judge McLean has overruled it in a case reported in the "Western Law Journal. 3 West. Law J. 1845, 6 p. 4.
    In the second place, the oath is void, because dated January 13, 1830, instead of 1831. Inasmuch as there is no jurat showing that the proper officer administered the oath, no presumption can arise that it is a mistaken date, especially in the absence of any proof tending to show mistake. 8 Ohio Rep. 14.
    4. The delinquent list shows no reason why the land is returned delinquent. This is required by law. (2 Oh'. 1493, § 26;) 6 Wheat. 119.
    V. The record of notice of sale is insufficient.
    1. It does not designate the several kinds of taxes, as in the duplicate. (3 Ch. 1811, § 29.)
    Besides this, the published list, to give it validity, being a copy of the return, must be certified and signed by the auditor. (2 Ch. 1811, § 29, 30.) This objection also applies to the delinquent return.
    2. The notice, “ published four weeks agreeably to law,” is insufficient. When was it published ? The facts must be stated so that the court can judge if it was agreeably to law.
    Unless the record shows upon its face the facts that make a legal publication, it is illegal. 1 McLean’s Rep. 322; 6 Wheat. 127 ; 3 Ch. 1811, § 30 ; 8 O. R. 114; 12 O. R. 271; 3 Chase 1811, § 31; 2 West. L. Jour. 1844-5, 544; 5 Ib. 1847-8, 304.
    
      The court cannot supply this, by a presumption that officers do their duty, until the contrary is shown. The rule is, that “ where a matter not of record is required to be done, it will Be presumed; but matters of record must, on their face, appear to be legally done.”
    The record is signed, not in the handwriting of the auditor, as is required by law. (3 Ch. 1811, § 31.) His genuine signature is requisite to its validity. Section 34 of this law author izes the auditor, or his deputy, to do certain acts; but the deputy cannot sign this record. The provision as to the deputy in one class of cases, excludes the idea that any person but the' auditor himself can perform this duty.
    4. It does not purport to “ be copied from the paper in which it was published.” (3 Ch. 1811, § 31.)
    VI. 1. It is proved that the tax deed issued without the production of a certificate of sale, and it is not proved that one ever issued. (3 Ch. 1812, § 28.)
    In case of loss there is no remedy, unless it be set up in chancery.
    But its loss is not proved. As it is an instrument which by law goes to the purchaser, the onus is on him of proving its loss. But as he cannot procure a deed without it, he must prove, 1st its existence; 2d, its loss, by oath or otherwise; 3d, diligent search; and 4th, its contents. 1 Greenl. Ev., § 558.
    2. The same section of the statute last referred' to, requires the production of a survey made by virtue of the certificate of sale. None was produced. It is not proved that a survey was ever made, but it is proved that none was produced or can be found in the surveyor’s record of Logan county, which is a record required by law. (Swan’s Stat. 895.)
    It will be seen, also, that the bill of exceptions does not state that diligent search was made at any time or place, for the survey, but only for the certificate of sale.
    It cannot be replied that the survey is presumed to be in dorsed on the certificate. Neither does the law require the survey to be indorsed on, or appended to the certificate, any more than it does an administrator’s report of sale to be indorsed on the order of sale.
    It is undoubtedly a work of supererogation to lengthen this argument for the purpose of sustaining the judgment below. But a question is made in the bill of exceptions, which it may be well for the profession and the public to have settled. The common pleas decided that the tax deed should be introduced in evidence by the party holding it, without the production of the tax records. This was wrong.
    In Turney v. Yeoman, 14 Ohio Rep. 207, it was decided that on forfeited sales, under the act of March 14, 1831, the deed was prima facie evidence of title, without preliminary proof. That decision rests solely upon the ground that the statute (Swan’s Stat. 938, § 6) declares that the “ deed shall be prima facie evidence of title,” without any provision requiring the holder of the deed to show that it was made in pursuance of the provisions of the statute. That, then, is the law as to forfeited sales under that act.
    In the case now before the court, the tax sale was made under a different act, the delinquent tax act of March 14, 1831. (3 Ch. 1812.) This act first recites the steps necessary to authorize a sale, and then declares “ that the deed so made shall be received as prima facie evidence.” The terms, “ so made,” cast upon the holder of the deed, the onus of showing all the preliminaries. Lessee of Holt’s Heirs v. Hemphill’s Heirs, 3 O. R. 233 ; Carlisle v. Longworth, 5 O. R. 368.
    In this latter case it was decided that -the holders of the tax deed must produce the tax records, because the statute (sec. 9) declares “ the deed made as herein before specified,” etc. The terms, “ so made,” in the act of 1831, are equivalent to the terms, “ made as herein before specified,” in the act of 1825.
    If this construction is given, it will reconcile the cases just referred to; otherwise the one is overruled by the other. It is high time that this court should stand by its own decisions, that no more conflicts in cases may be made than can reasonably be avoided; else the lawyer, as he contemplates our eighteen volumes of Ohio Reports, may well inscribe upon the whole,
    --“ Ml fuit urnjuam
    Sic impar site.”
    And I can certainly see no reason why a tax d.eed shall have more favor than a sheriff’s deed, to sustain which, though made by law prima facie evidence, the party holding it must show a judgment, execution, levy, sale and confirmation.
    If this view is sustained, then the judgment below must be affirmed, as only a part of the tax records are before the court. The assessor’s appraisement, the return made in 1831, showing that the taxes were not paid so as to authorize a sale, and other records recited in the deed, must all be before the court, to sustain this tax sale. Finally, as a matter of public policy, tax sales should not be sustained, unless the laws are shown to have been complied with. In the varied transactions of men, absolute punctuality in paying taxes is impossible. Misfortune, disease, death, every where pervade the world, and interrupt the performance of the duties of the citizen. Widows and orphans will be plundered of their estates, to add to the wealth of calculating and heartless speculators, buying “ acres for cents,” unless their rights are protected in courts of justice.
   Avery, J.

After an examination of the bill of exceptions, the court has come to the conclusion that enough is shown in it, to give jurisdiction of the case, and to warrant an inquiry into the several matters discussed in the argument.

There is no denial of the right to recover in the ejectment, if the tax sale did not pass the title.

The counsel for the defendant in error alleges that the purchaser at the tax sale acquired no title, for the following reasons:

“ I. The law did not authorize the officers of Logan county to sell land in Hardin, which, for ‘ purposes of taxation,’ was ‘ attached ’ to Logan.
“ II. " If a sale was authorized because Hardin was ‘ attached ’ to Logan, then being but one county, no greater rate of taxes could be levied than by law was authorized upon the ag gregate duplicate footings of the two counties, which was done, and so the sale was void.
“ III. There is no legal duplicate of taxes for 1830 and 1831, with duplicate footings signed and certified by the audit- or, with columns stating separately the taxes of 1830 and 1831, or even purporting to include delinquent taxes. The duplicates of 1830 and 1831, do not state the accurate amounts of .the several kinds of taxes in separate columns.
“ IV. The list of lands delinquent for 1830, returned by the treasurer to the auditor, is invalid, because: First, it was not returned on the first Monday in January, but on the 13th; Second, the settlement between the auditor and treasurer was not made on the same first Monday; Third, the treasurer’s oath to the delinquent return, though subscribed by him, is not certified by the auditor, and is dated January 13, 1830 —long before he even received the duplicate; Fourth, the delinquent return does not show any reason why this land was returned delinquent.
“ V. The record of the published notice of the tax sale -is insufficient: First, it does not designate the several kinds of taxes, nor the taxes of each year, separately, nor is the list certified and signed; Second, it. does not show a legal publication,-reciting only ‘four weeks according to law;’ Third, the auditor’s name is signed to it in the handwriting of another person ; and finally, it does not purport to be copied from the published newspaper notice.
“ VI. The record of the tax sale is not certified or signed by the auditor.
“ VII. The tax deed was executed without the production of a certificate of sale or survey. No survey is found in the surveyor’s book ; nor is the existence or loss of such certificate and survey proved.”

The counsel urge that the law gave no authority to the officers of Logan to sell lands in Hardin; but supposing it to have conferred such power, that then both must be regarded, “ for the purposes of taxation,” as one county, and the valuation upon the tax list of the counties united, must form the basis of the per centum to be levied! The law in this particular, it is said, has not been pursued by the county officers.

In order to determine the force of this objection, it will be necessary to look at some of the sections in several of our statutes ; these we proceed to examine:

On the 12th of February, 1820, an act of the state legisla ture was passed (3 Chase 2134) which provides in the first section, “ that all that part of the lands lately ceded by the Indians to the United States, which lies within this state, shall be, and the same is hereby erected into fourteen separate and distinct counties.” Hardin was one of the counties created by this section. As these newly made counties contained but a few inhabitants, they were attached to such other counties, already organized, as happened to be adjoining or near to them. By the second section of the act, Hardin was attached to Logan, which was then an organized county, having county officers - for the management of its concerns. At an early period provision was made by law, directing the mode of appropriating the money belonging to counties or districts attached. By the law of January 11, 1820, it was declared that while a new county should remain attached to an organized county, the expenses should first be paid from the whole tax, except appropriations for roads-, bridges, or public buildings. The act to amend “ the act establishing an equitable mode of levying taxes, passed January 17,1826,” (3 Chase 1517,) attached the county of Hardin to the county of Logan for all the purposes of taxation,” and the supplementary act, passed the next year, (3 Chase 1562,) limited the power of the county commissioners, in fixing the amount per centum which they might levy, and made the amount to depend upon the aggregate value of all the property on the list for taxation. Their power was limited first with reference to the road tax by the following provision: “ When the aggregate amount of the value of all property entered upon the general list for taxation, shall be one million five hundred thousand dollars, or more, the road tax shall not exceed one mill upon the dollar, and when such amount of valuation shall be less than one million five hundred thousand dollars, such road tax shall not exceed three mills upon the dollar of such valuation,” and concerning the tax to be levied for county purposes, the act provides that “ when the amount of valuation shall five hundred thousand dollars or more, and less than one million of dollars, such tax shall not exceed three mills on the dollar, and when said amount of valuation shall be less than five hundred thousand dollars, such tax shall not exceed five mills upon the dollar of such valuation.” The question is now made upon the several statutes above referred to, whether the limit to the power of the county commissioners applies to counties attached, as well as to counties then acting separately; and we are of the opinion that the limit is the same in both cases, since the two counties make but one district for the purpose of taxation, their taxes being all levied and collected in common, and under the direction of but one board of commissioners. When the power of the commissioners is so limited, a tax of any greater amount is unauthorized and void. In every case where an individual tax is upon trial shown to be greater than the amount authorized, a sale of land for the payment of such tax, will be deemed void, and certainly a general tax must be void, when no power exists for levying it. It only remains to look at the proof and see if the present is such a case. The proceedings of the commissioners show that a tax of 41-mills was imposed for county purposes; the certificate of the auditor of Logan county shows that the valuation for the two counties’ for the year 1830 was upwards of $537,000. That it was over $500,000 is taken for granted in the argument. The tax, therefore, could not legally exceed three mills on the dollar. As it was in this case 4-|- mills, the tax sale in controversy, and the deed made in pursuance of it, were void.

The determination of this point puts an end to any defense in the action of ejectment, by virtue of the tax purchase, and we have not thought it necessary to decide upon either of the other questions discussed.

The judgment in the common pleas was for the plaintiff in ejectment, and must, therefore, be affirmed.  