
    Hamilton and others’ Lessee vs. Burum and others.
    
    The execution by a public officer, of a power to sell lands for the non-payment of taxes, must be in strict pursuance of the law under which it is made, or no title is conveyed.
    It is essential to the validity of a sale of land for taxes, that it should appear in the record.of the court that the lands lie in the county; that the taxes remain due and unpaid, and that the sheriff had returned there were no goods or chattels of the proprietor out of which the taxes could be made; these being facts necessary to give the court jurisdiction to make the order of sale.
    The fact of the land lying in the county, must appear upon the list of the justice of record in the court; it is not sufficient if it appear by the sheriff’s return; the justice is the person authorized by law to make report of this fact, not the sheriff.
    Every fact necessary to give the court jurisdiction in a summary proceeding, must appear of record to give the judgment validity; if they do not appear, the judgment is coram, non judice and void.
    This was an action of ejectment, commenced in the circuit court of Carroll county. The land in controversy was granted by the state of Tennessee to the defendant Burum, who was in possession by his tenants at the commencement of this suit.
    The lessors of the plaintiff claimed title to the land by virtue of the sheriff’s deeds, reciting that the same had been condemned and sold for the non-payment of the taxes, which deeds were read in evidence by the plaintiff. He also read in evidence a transcript of the record and proceedings in the county court of Carroll, condemning this and other tracts of lands for the non-payment of the taxes; which record is in the words and figures following. After stating the court and term, the record proceeds; “Be it remembered,that at said term, Sion Rogers, Esq. sheriff and collector of the public taxes for the county of Carroll and state of Tennessee, returned into open court, a report in the words and figures following, to wit: Whereas, Sion Rogers, sheriff and collector of the public taxes in and for the county of Carroll, for the year 1827, reported to this court the following tracts or parcels of land, as having been given in, listed and returned for the public taxes for the year 1827, in said county; that the same lies within the bounds of said county; that the taxes thereon as aforesaid, remain due and unpaid, and that the respective owners or claimants thereof, have no goods or chattels within his county, on which he can dis-train for said taxes, to wit: (amongst others,) Peter Burum, 436⅞ acres, entry 849, range 2, section 3, taxes, $3 814, clerk’s fees, ‡140, sheriff’s fees, ‡100, printer’s fees, ‡1 50, total amount, $7 714.
    Whereupon, it is considered by the court, that judgment be, and it is hereby entered against the aforesaid tracts of land, in the name of the State of Tennessee, for the said sum, being the amount of taxes, costs and charges due thereon, for the year 1827. And it is ordered by the court, that the said tract of land, or so much thereof as shall be of value sufficient to satisfy the taxes, costs and charges, be sold as the law directs.”
    Whereupon, an order of sale was issued, as follows: “To the sheriff of Carroll county: You are hereby commanded to execute and return the following judgment and order of sale according to law. Whereas, Sion Rogers, sheriff and collector of the public taxes in and for the county of Carroll, for the year 1827, reported to this court the following tracts of land, as having been given in, listed, and returned for the public taxes, for the year 1827; that the same lies in his county; that the taxes thereon remain due and unpaid, and that the owners thereof have no goods or chattels in his county, on which he can distrain for said taxes, to wit: (amongst others,) Peter Burum, 4364 acres, entry No. 849, range 2, sec. 3, taxes, $>3 814, clerk’s fees, 
      $1 40, sheriff’s fees, $¡1 00, printer’s fees, ‡1 50, total amount, ‡7 71 i. Whereupon, it is considered by the court, that judgment he,and it is hereby entered against the aforesaid tracts of lands, in the name of the State of Tennessee, for the sums severally annexed to each, being the amount of taxes, costs and charges due thereon, for 1827. And it is ordered by the court, that said several tracts of land, or so much thereof' as shall be sufficient to satisfy the taxes, costs and charges, &c. be sold as the law directs. A copy test. Ed. N. Gwin, Clerk of C. C. Issued 6th May, 1828.” On the back of which were the following returns: Came to hand 12th May, 1828, and advertised in the West Tennes-seean, a public paper printed at the town of Paris in the Western District, in the state of Tennessee, and in the Nashville Republican and State Gazette, a public paper printed in the town of Nashville and State aforesaid, to be sold the first Monday in November next, and the succeeding day; said advertisement to be published in each of the foregoing papers respectively, ninety days previous to the day of sale, as by the statute in such cases made and provided. Sion Rogers, sheriff,” &c. Also, the following endorsement: “A list of land sold for the taxes for the year 1827, on the first Monday in November, 1828, and to whom sold: (amongst others,) Peter Burum, 436⅛ acres, entry No. 849, range 2, sec. 3, taxes $>‘3 81 ⅜, clerk’s fees, ‡1 40, sheriff’s fees, $jl 00, printer’s fees, $¡1 50, total amount, fj7 71-1, sold to Gwin, M’Keirnan, Gillespie and Hamilton. I Sion Rogers, sheriff in and for the county of Carroll, do hereby certify, that the foregoing tracts of land, &c. were duly and lawfully published ninety days, agreeable to the statutes in such case made and provided, as heretofore in this order of sale specified and set forth, and that on the first Monday of November, 1828, and the succeeding day, they were offered for sale, and that so many of the foregoing tracts as hath annexed to them persons’ names, were then and there, at the time of sale aforesaid, openly and publicly struck off and sold to each and every of the individuals respectively, whose names are annexed, they being the lowest bidder, agreeable to the law in such case made and provided, &c. This 9th March, 1829.”
    The clerk of the county court then certifies, that the foregoing is a true and perfect transcript from the records on file in his office.
    The plaintiff then read in evidence a transcript of a record of the county court of Carroll county, assessing the taxes for said year, which is as follows:
    “Pleas, &c. (setting out the term of the court, the opening of the court, and the justices present, &c.) It is ordered by the court, that the county tax be laid' at the following rates,, for the year 1827, for the purpose of meeting all county demands; county tax on land, 181 cents; jury tax on land, 25 cents; poor tax on land, 6⅜ cents; bridge tax, 12⅛ cents; navigation tax, 6⅜ cents.”
    The plaintiffs proved by Sion Rogers, that the land in controversy lies in Carroll county; that the taxes for 1827 were not paid; that there were no goods and chattels of the said Burum in said county, whereon he could distrain for said taxes, &c. and that he advertised said land, by giving upwards of three months no. tice in two public newspapers printed in this state, one at Nashville and the other at Paris, (which papers and advertisement were read in evidence,) from which it appeared the land had been advertised three several times in each of said papers; time and place of sale •stated to he at the court house in Huntingdon, on the first Monday in November 1828, and the succeeding day; and that he sold the same upon the day and at the place specified, between the hours of ten in the morning and sun set; and that neither before nor after the sale, were the taxes tendered or offered to be paid to him by any person, at or before the time of re.demption expired; and that the lessors of the plaintiff purchased the same.
    The plaintiff also proved, that defendants were in possession at the time the suit was commenced.
    The court charged the jury, that the navigation tax of 6⅜ cents, assessed by the county court of Carroll, for the year 1827, was assessed without authority; that the act of the legislature authorizing it, was unconstitutional and void; and that if part of the tax laid was unauthorized, it rendered the whole judgment of condemnation void, and communicated no title by virtue of the sale under it; that the judgment being an entire thing, if void for part, was void in toto. This opinion was excepted to. The jury found' a verdict for the defendants. A motion for a new trial was moved for but overruled, and an appeal in error prosecuted to this court.
    
      P. M. Miller, Brown and Huntsman, for the plaintifls in error.
    
      G. W. Gibbs, for defendants in error.
   Green, J.

The principal question in this case is, whether by the sheriff’s deed, founded on the record and proceedings of the county court of Carroll, a valid title, is vested in the lessors of the plaintiff. The sale was made for the taxes of the year 1827; and its validity must depend, or he tested by the provisions of the acts of 1813 and 1819.

Several facts must appear on the record in order to give validity to such sale. In M’Carroll vs. Weeks, 2 Tenn. Report; and Francis vs. Washbrim and Russell, 5 Hay. Reports, it is decided, that whatever gives jurisdiction must appear in the proceedings. This principle holds in all summary proceedings. Here the facts which give jurisdiction are, that the land lies in the county; that-the sums due for the taxes remain unpaid; and that there was no personal property that could he distrained for the payment. The act of 1813, ch. 98, sec. 11 and 13, and the act of 1819, ch. 53, sec. 1, 2, 3 and 4, prescribe the manner in which these facts shall he made to appear. The 11th section of the act of 1813, directs, that the justices “appointed to receive the lists of taxable property and polls, shall make return of such lists to their respective county courts, at the next term after they shall be received.” The 13th section requires “the clerk of each county court to record at large in alphabetical order, the annual returns that shall be made.” By these two provisions, the county court has on its records, evidence of the facts, that the land lies in the county, and is chargeable with the sums due for taxes. The 16th section of the same act, directs the sheriff when there is no personal property on which he can make distress, to make report thereof to the court of his county, whereupon the court is to proceed to condemn the land, and issue an order of sale. Here the sheriff’s report is to contain no fact of which the court is already informed by the recorded return of the justices, but is restricted to those facts which could only be derived from him. The act of 1819, ch. 53, sec. 3, is alterative of the 16th section of the act of 1813, only so far as it prescribes the form of the sheriff’s report; the facts to be reported are the same and those only; but the report is to pursue the form given in the 1st section, “as nearly as the nature of such case will permit.” So, the judgment of the courtis to pursue the form given in the second section, “as nearly as the nature of such case will permit.” These forms are given to fit cases where the land was omitted to be given in for taxes, and were liable to double taxes. In the case under consideration, where the land had been listed for taxation, the “forms’’ are to be varied to meet the facts of the case, as those facts have been by the lawful means made to appear,— It is not only necessary, that the judgment should recite the facts upon which the jurisdiction of the court depends, hut those facts must he recited as coming from the sources appointed by law to communicate them.— Thus, the act of 1813, ch. 98, sec. 13, requires, that the justice’s list of taxable property shall be' recorded. If this be done, the court has record evidence of the facts it contains. We have already seen that neither the 16th section of the act of 1813, nor the 3d section of the act of 1819, contemplate a repetition, of that evidence by the sheriff in his report; if he .do repeat it, he does an act of supererrogation, not within the scope of his duties, having no official character, and entitled to no more notice than if it had been done, by any other person. Would a judgment of the court be good, condemning land to be sold for double taxes, founded on the report of a constable, though that report might contain all the facts, and though the judgment might recite all the facts necessary to give jurisdiction?- All will agree it would not; and why? Because the facts are not recited in the judgment as coming from the officer appointed by the law to communicate them. If it has been established, that the sheriff is not directed by law to report any fact, which the law contemplates as being shown by the recorded list of the justices, it follows in-' evitably that the recitation of any such fact as coming from him, is not sufficient authority for the court to assume jurisdiction, and render judgment.

The sheriff’s report of lands listed' for taxation, should only have contained the facts, that the taxes were unpaid, and that, there was no personal property belonging to the claimant in the county. These facts only should have been recited, as derivable from his report; and the other fact necessary to give jurisdiction, should have been recited as derivable from the justice’s list on record.

If the judgment show upon its face the facts necessary to give it validity, it would not be necessary in a trial of this sort, to go behind that judgment to show the evidence upon which it was founded. The objection to this judgment is, that it recites apart of the facts necessarj to give jurisdiction, as coming from an officer not designated by law to communicate them; and consequently such communication gave no authority to the court to recognize them as existing, and to pronounce judgment upon the assumption of their existence.

It is unnecessary to discuss the question whether the judgment is void because the navigation tax formed part of the sum for which it was rendered. Whether the court below gave the best reason for its judgment, is not material; if that judgment be correct, though for a different reason than the one upon which it was founded, this court will not reverse it.

I am of opinion, that the judgment of the county court of Carroll, condemning the lands in controversy to be sold for the taxes for the year 1827, is void, and that no title-vested in the lessors of the plaintiff by virtue of the sale and sheriff’s deed to them, and that therefore the judgment in this cause ought to be affirmed.

Peck, J. concurred.

Whyte, J. did not sit in the cause.

Catron, Ch. J.

(dissentiente.) At the first sessions of the county court of Carroll, for 1828, the following judgment was entered up, against lands, the owners of which had not paid the taxes for the preceding year. (The opinion here states the judgment, which it is unnecessary to insert, as it appears in the statement of the case.)

Will this judgment sustain a tax sale and sheriff’s deed? 1. It is insisted in argument, that to show the court had jurisdiction to give the judgment, the tax list taken by the justices, and made up by the clerk, was necessary to be given in evidence in the action of ejectment, to justify the judgment.

If there he one legal principle better settled than another, in all civilized countries, and especially in the English and American courts of justice, it is that the judgments or sentences of an exclusive jurisdiction, operating in rem, as this does, are conclusive evidence of the matters they decide, especially when read as evidence collaterally; and that when the judgment or sentence states the facts upon which it is grounded, it is conclusive that the facts thus stated, are true. 1 Stark. Ev. Judicial Judgments S. 77, 81. 8 Term Rep. 192. 5 East, 105, 155. 2 Ten. R. 218. 3 Whea. Rep. 246. Pinson vs Ivey, by this court at Nashville, 1830.

The court need only state the facts conferring jurisdiction, without stating the evidence of the facts. 2 Tenn. Rep. 217, 218. This general rule has an exception, in the case of a tax sale, the act of 1819 requiring the judgment to recite the sheriff’s return, and that this he substantially incorporated in the judgment. The tax list in the sheriff’s hands is an execution; he is acting as a public officer; his return the act of 1819 orders to he recorded, and when so recorded, it cannot be denied. It is more satisfactory evidence than the tax list, on which it is a return, and hy which it may he corrected by the court at the time when made; and hence it is, the act of 1819 requires the court to rely upon it, as the evidence to ground the judgment of condemnation upon. The court pronounces the facts returned by the sheriff to be true; and it is its duty to see that they be true, and to correct them if they he otherwise.

The act of 1819, sec. 3, manifestly, to my mind, contemplated the same mode of report, and substantial form of judgment, where the lands had been listed by the owner, and where they were reported by the sheriff for double tax. But were this doubtful, the doubt ought to give way to the practice of sheriffs, clerks and county courts, for the last twelve years. From the passage j.pe acp 0f 1819, to this time, judgments have been entered in the form this is, universally throughout the state, it is believed.

The idea of giving a tax list in evidence to aid a judgment, required to be perfect in itself, has been, fcr the first time within my knowledge, suggested in this cause. If the judgment be void, it can receive no aid from the tax list; and if it be valid,its conclusive force cannot be impeached by this inferior and inconclusive evidence. That it is conclusive, this court decided in Marr vs Enloe. If we go behind the judgment, and assail its force by the tax list, or say it is void because the list is not produced, we will, in effect, take upon us the power to reverse the judgment of the county court condemning the land, by declaring there was no evidence to warrant it, contrary to the facts stated upon its face; this cannot be done, as is in substance decided in M’Carroll vs Weeks, (2 Tenn. Rep. 218,) and which I have never heard questioned in this respect until now.

2. Is the judgment then good on its face ? All the facts necessary to give the court jurisdiction, or that have ever been supposed necessary, by any decision or opinion, are stated. But it is insisted the land is not well described. The description by range and section, is in strict conformity to the act of 1826, ch. 36.

3. It is contended, the advertisement did not authorize the sale, not having been made in two newspapers, one printed in each end of the state, as required by the act of 1819, sec. 5. Generally, in tax sales, as well as other execution sales, the presumption that the sheriff did advertise as his duty required, is taken to be prima facie proved by the statement of the fact in his deed; yet it may he disproved by the defendant. In this case the deed shows, (as does the proof,) that the land sold was advertised in one paper printed at Nashville, and another printed at Paris. This was the proper mode, and pursued the act of 1822, ch. 181.

The fourth objection is to the substance of the judgment. The county court, it is alleged, assessed upon each 100 acres of land, 6i cents as a navigation tax. This the court, in Marr vs Enloe, pronounced unconstitutional and void; and it is insisted, that forasmuch as it formed part of the aggregate of the judgment, the whole is void. The court has jurisdiction of the subject matter, and the same right to enter up judgment against Burum, as if he had been in court. If the judgment was for too large a sum, it was erroneous, and he had the right to take it up by certiorari, and have it reversed; but until reversed, it has the same binding force as other judgments. The court having had jurisdiction, there is no difference in this respect between ex parte proceedings, operating in ram, and proceedings where there has been notice and trial. 1 Stark. Ev. 238, sec. 81. 5 East 105, 155. 2 Taunton, 85. 4 Hay. Rep. 61.

The court of pleas and quarter sessions is a court of extensive powers generally, and has exclusive jurisdiction in matters of revenue, and has just as much right to pronounce upon the constitutionality of a .law, as any court whatever; and-if it has declared the navigation tax constitutional, and rendered judgment thereon, the same is of course a valid judgment until reversed, no difference what this or any other court may think on the abstract question.

Be this as it may, the judgment does not state the fact, that a navigation fax was assessed, and therefore the objection must fail.

This point was adjudged for the defendant in the circuit court, upon which he had a verdict, and was the main, and judging from the charge, the only grounds of defence assumed below. I am of opinion the judgment ought to be reversed, and the cause remanded for a new trial.

Judgment affirmed. 
      
      
         1 Yerger’s Rep. 296,
     
      
      
         1 Yerger’s Rep. 452.
     