
    Anderson vs. Patton and Lowder.
    Where land is sold by judgment of the county court for the taxes, the grounds of fact upon which the jurisdiction rests must appear in such judgment, or it will be void and convey no title to the purchaser.
    The jurisdiction of the'county court rests upon the following facts: First, that the land lies in the county. Second, that tile taxes remain due and unpaid. Third, that there is no personal property on which the collector can levy for the satisfaction of the taxes.
    If the county court in their judgment omit to assume the facts upon which their jurisdiction rests, or themselves to state their existence, but instead thereof allege that they have been communicated to them by some officer or agent of the public, then the public must have entrusted such agent or officer to make to them the communication, ortheir jurisdiction will not appear.
    If the judgment omit to state that the land lies in the county, but this fact is stated by the sheriff in his report, the judgment will be void notwithstanding, the sheriff not being the officer appointed by law to make such communication to the county court; nor will the return of the surveyor alter the case, as such return is not a part of the evidence in the case or a proceeding in it, and as the court cannot look behind the judgment for evidence to sustain its validity.
    John Anderson instituted an action of ejectment in the circuit court of Carroll county on the 4th day of December, 1834, against Jacob Lowder and William L. Patton for the recovery of the possession of six hundred and forty acres of land lying in the county of Carroll, in range one, section four. The cause was continued from time to time till the March term,' 1837, when it was submitted to a jury, judge Martin presiding. The plaintiff read a grant for the land in contra-verSy from the State of Tennessee, bearing date the 7th day of June, 1822, and duly registered in the register’s office of West Tennessee, and proved that the defendants were in possession of the land at the time of the issuance of the writ, and that it lay in the county of Weakley. The defendants then offered as evidence in this case a record of the proceedings of the county court of Carroll county, in the following words:
    “Pleas at a court of pleas and quarter sessions begun and held for the county of Carroll, in the State of Tennessee, at the court-house in the town of Huntingdon, on the second Monday in December, A. D. 1826: Present, the worshipful Nathan Nesbitt, &c. &c.
    “Be it remembered, that heretofore, to wit, on or before the 11th day of April, 1822, Robert E. C. Dougherty, principal surveyor of the twelfth surveyor’s district of the State of Tennessee, returned and transmitted into the clerk’s office of the court of pleas and quarter sessions in and for said county of Carroll a list of lands lying and being within the bounds of said county of Carroll, and subject to taxation for the taxes of the year 1822, which list of claims so transmitted the clerk of said court carefully recorded in a book kept by him for that purpose, in alphabetical order, as prescribed by law. And amongst other tracts of land in said list of claims so by the said surveyor returned as aforesaid and by the clerk recorded as aforesaid there was one tract or parcel of land recorded in the name of John Anderson for six hundred and forty acres, entry No. 120, range one, section four; and at the term aforesaid an order was made in the words and figures following, to wit: “Ordered by the court, that Nathan Nesbitt, esquire, be appointed to take the list of the taxable property and polls in the bounds of captain Moffit’s company for 1827, and that'he-make return to the next term of said court.” And at the March term, 1827, of said county court, present, the worshipful Nathan Nesbitt, esquire, &c. &c. &c. Be it remembered, that at the said term an order was made in the words and figures following, to wit:. “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- de-mauds: County tax on land eighteen and three-fourth cents; jury tax on land twenty-five cents; poor tax on land six and one-fourth cents; navigation tax on land six and one-fourth cents; bridge tax twelve and one-half cents; county tax on town lots thirty-seven and a half cents; bridge tax six and one-fourth cents; jury tax twelve and a half cents; poor tax six and one-fourth cents; white poll twelve and a half cents; black poll twenty-five cents; stud horse, the season of amare; tax on retail groceries, stores, hawkers and pedlars five dollars each.” And at the term last aforesaid, Nathan Nesbitt, esquire, &c. &c. &c. returned in open court a list of taxable property and polls in the bounds of said company for the year 1827. Whereupon the foregoing lists of taxable property, as returned by the justices appointed to take the same, were recorded in alphabetical order in a book procured by said county for that purpose; and from the said lists so by the said justices returned as aforesaid the clerk made out in his duplicate for the sheriff and collector of the public taxes in and for said county a list of all the lands transmitted by the surveyor and described and so recorded by the clerk as aforesaid, with the amount of taxes arising thereon annexed; and amongst the tracts so by the said clerk listed as aforesaid in his said duplicate was the following tract: One in the name of John Anderson, for six hundred and forty acres, entry No. 120, range seven, section four, taxes five dollars and sixty cents. And at March term, 182S, of Carroll county court, present, the worshipful Nathan Nesbitt, esquire, &c. &e. Be it remembered, that at said term Sion Rogers, esquire, sheriff and collector of the public taxes in and for the county of Carroll, returned in open court a report, which is in the woi’ds and figures following, to wit:
    “State of Tennessee, Carroll county, March sessions, 1828. I, Sion Rogers, sheriff and collector of the public taxes in and for the county of Carroll, do hereby report to court the following tracts of land, town lots, &c. lying in and within the county aforesaid, as having been listed for the taxes for the year 1827; that the same is liable for the taxes; that the taxes thereon respectively remain due and unpaid, and that the respective owners or claimants thereof have no goods or chattels within my county on which I can distrain for said -taxes, to wit: (amongst others,) John Anderson, six hundred and forty acres, entry No. 120, range one, section four, taxes five dollars and sixty cents, clerk’s fees one dollar and forty cents, sheriff’s fees one dollar, printer’s fees one dollar and fifty cents.”
    ‘‘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 the owners or claimants thereof have no goods or chattels in his county on which he can distrain for said taxes, to wit: (amongst others,) “John Anderson, six hundred and forty acres, entry No. 120, range one, section four, taxes five dollars and sixty cents, clerk’s fees one dollar and forty cents, sheriff’s fees one dollar, printer’s fees one dollar and fifty cents.”
    “Whereupon it is considered by the court that judgment be and is hereby entered against the aforesaid tracts of land 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 the year 1827; and it is ordered by the court that said tracts of land, or so much thereof as shall be of value sufficient of each of them to satisfy the taxes, costs and charges annexed to them severally, be sold as the law directs. Whereupon an order of sale issued to Sion Rogers, sheriff and collector of the public taxes for the county of Carroll, in the words and figures following, to wit:
    “State of Tennessee, Carroll county, March sessions, 1828. To the sheriff of Carroll county, greeting: You are hereby commanded to execute and return the following order and judgment of sale according to law. [Here follows the preceding judgment of sale.]
    “Signed: A copy, teste, Edmund Gwin, clerk of Carroll county court. Issued 6th May, 1828.”
    “Pursuant to the above judgment and order of sale, I, Sion Rogers, sheriff and collector of the public taxes for said coum ty of Carroll, will expose to public sale at the court-house of said county, in the town of Huntingdon, on the first Monday of November, 1828, or the succeeding day, between the hours of ten o’clock in the forenoon and sun-set, the foregoing tracts of land, or so much thereof of each as will he sufficient to satisfy the tax, costs and charges severally due thereon, unless previously paid.
    (Signed,) Sion Rogers,
    “May 12th, 1828. Sheriff of Carroll county.”
    “Endorsed: ‘Came to hand May 12,1829, and advertised in the West Tennessean, a public paper printed in the town of Paris, in the Western District of the State of Tennessee, and 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 succeeding day; said advertisements to be published and declared in each of the foregoing papers respectively ninety days previous .to the day of sale, as by the statute in such case made and provided. Sion Rogers, Sheriff' of Carroll county.’
    “Endorsed also: ‘A list of land, sold for taxes for 1S27 on the first Monday in November, 1828, and to whom sold: (amongst others,) John Anderson, six hundred and forty acres, entry No. 120, range one, section four, taxes five dollars and sixty cents, clerk’s fee one dollar and forty cents, sheriff’s fee one dollar, printer’s fee one dollar and fifty cents. Sold to John Owen.’
    “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 said case made and provided, as heretofore in this order of sale specified and set forth; and that on the first Monday in November, 1828, and the succeeding day, they were offered for sale, and that so many of the foregoing tracts of land as were annexed to those persons’ names were then and there, at the time of the sale aforesaid, openly and publicly struck off to each and every of the individuals respectively whose names are annexed, they being the lowest bidders, agreeable to the law in such cases made and provided; and that the tracts of land specified in the foregoing order of sale to which no names are annexed have not been . sold, no person bidding therefor. This 9th day of March, 1829. Sion Rogers, Sheriff of Carroll county.”
    The defendants then offered to read a deed from Sion Rogers, sheriff and collector, to John Owen, but it was objected to on the ground that its calls did not cover the land in controversy; the objection was sustained and the deed rejected. The defendants then introduced and read to the jury a deed from Neely, the sheriff of Carroll county, successor to Rogers, for the land in controversy, to John Owen, the purchaser at the tax sale, reciting the proceedings in regard to the levy of the tax, the reporting of the land for the taxes, the judgment of the county court, and sale by Rogers to Owen, and conveying to him, in virtue of the office of sheriff and collector of the public taxes, all the right, title and claim that John Anderson had in and to the premises. The defendants also proved that the notice of sale was given according to law.
    Judge Martin charged the jury, amongst other things, that if they found that the plaintiff’s grant covered the land in controversy (the possession being admitted) and the identity of the land covered by the grant and sheriff’s deed, the plaintiff would be entitled to a recovery unless his title was divested by the judgment of the county court of Carroll ordering the said land to be sold for the taxes, and the subsequent sale thereof by Rogers, the sheriff, to Owen; that in order to make such judgmentand sale effectual to convey the title of Anderson to Owen it should appear that the court in rendering the judgment had jurisdiction; that three things should appear in the record and proceedings of the county court to show jurisdiction: first, that the land lay in the county of Carroll; second,that the taxes weredue and unpaid; third, that the owner of the land had no personal goods and chattels in the county which the sheriff could seize for the satisfaction of the taxes. He further charged them that these facts did appear in the record of the proceedings of the county court of Carrol], that such judgment and sale and deed of sheriff and collector did vest Owen with the title to the premises in dispute.
    The jury rendered a verdict for the defendants, and a motion for a new trial being overruled the plaintiff appealed' in error.
    This case was argued by Messrs. Martin, M’Clanahan and M’Campbell, for the plaintiff in error, and by Messrs. Totten, M’Kernan and Geo. S. Yerger, for the defendants. The reporter however has not been able to procure any of the labored arguments which were addressed to the court on the occasion.
   Reese, J.

delivered the opinion of the court'.

In two important propositions on the subject of tax sales, when collaterally investigated, all the leading cases in our State agree: first, that it is necessary to the validity of the judgment of condemnation that the grounds of fact upon which the jurisdiction rests should be set forth in such judgment; and secondly, that these grounds of fact necessary to maintain the jurisdiction being shown or averred, the truth of these grounds or the evidence -to establish them need not be shown. As a principle upon which to maintain the first proposition, some of the cases found themselves upon the limited and inferior jurisdiction of the county court and the summary and ex farte character of the proceedings in tax sales; while to maintain the second proposition, some of the judges appear to deny the proper application of the above principle to tax sale proceedings, and call to the support of such second proposition the principle that the jurisdiction is exclusive and the proceeding in rem.

Both these propositions appear in the following extract from the opinion of the court in the case of M'Carrol vs. Weeks, 2 Ten. Rep. 219: “The ground of jurisdiction is afforded to the county court by the existence of two facts: first, that the property taxed is situated in the county; secondly, that its owner is delinquent in discharging the taxes on it agreeably to law. When the court see these two facts spread upon the record it is all that it is necessary for it to see with a view to the legality of a j udgment for taxes. In support of a judgment of competent jurisdiction, all directory requisites of the law are presumed to have been com-' plied with, and this presumption attaches as well to‘the ju’dg-ments of inferior or limited courts "as of those proceeding according to the course of the common iaw; in the latter a want of jurisdiction is never presumed. In a court of limited powers the reverse of this proposition holds.” So also these propositions are asserted and maintained, as w7ell by the opinions of the court as by that of the dissenting judge, in the case of Hamilton vs. Burum, 3 Yer. Rep. 155. In that case the court say: “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.” So also the dissenting judge: “The court need only state the facts conferring jurisdiction without stating the evidence of the facts.” We do not understand that with regard to these two propositions there was any difference of views between he majority of the court and the dissenting member. The court say, “several facts must appear on the record in order to give validity to such sale;” that “the facts which give jurisdiction are: that the land lies in the county, that the sum due for the taxes remain unpaid, and that there was no personal property that could be distrained for the payment;” The court indeed, in another place, say, “it is not only necessary that the judgment should recite the facts upon which the jurisdiction of the court depends, but those facts must be recited as coming from the sources appointed by law to communicate them.” By this we do not understand the court as meaning that the county court should “show the evidence upon which their jurisdiction was founded,” for we have already seen that they assert the contrary; but we understand them as meaning that if the county court, in their judgment, omit to assume the facts upon which their jurisdiction rests, or themselves to state their existence, but instead thereof allege that they have been communicated to them by some officer or agent of the public, then the public must have trusted such officer or agent to make to them the communication, or their jurisdiction will not appear. From the .correctness of this principle. there must be few indeed who could not hesitate to dissent. We think- it correct, and the only question before us is, whether it was properly applied in the case of Hamilton vs. Burum, for if so, it properly applies in this case also, which is identical.

The 11th section of the act of 1813, ch. 98, points out the manner in which justices shall return lists of real estate, and, among other things, it provides that they shall show its situation as being in the county, and its more minute locality, The IGth section of that act requires of the sheriff, when land has been so listed and returned by the justices and the taxes are not paid] and there is no personal property upon which to make distress, that he should report these facts to the court, that is, the non-payment of taxes and the want of personal property; the other facts, the existence of the land in the county, and its locality, constituted a portion of the justices report which must have been already made. It is obvious that the third section of the act of 1819 does not enlarge the powers or duties of the sheriff beyond those which were given or imposed by the 16th section of the act of 1813. ' The 16th section of the latter act contains the substance of what he is required to report by the terms of the 3d section of the act 1819, which requires of him, when performing that duty, that he should pursue as nearly as may be the form which is given fot his report by the 1st section of the act of 1819. It follows that as by the 16th section of the act of 1813 the sheriff is not required to report the situation and locality of land which has been listed for taxes and returned by the justices, so neither is he thus required by the 3d section of the act of 1819.

But it is argued that the form of the sheriff’s report of land not given in for taxation, set forth in the 1st section of the act of 1819, makes its manifest that the legislature did not require that the report of the sheriff or the judgment of the county court should show the fact as a ground of jurisdiction, that the land is situated within the county, No such statement is said to be contained in the form prescribed, and that to require it would be, by judicial construction, to make an interpolation upon the very terms of the act of assembly. And it is further said, that having been omitted in the section where the form is prescribed, it would be improper to require it in the case provided for in the 3d section. This whole argument is overthrown by a reference to the actual form prescribed, which, like the 11th section of the act of 1813, requires that the situation of the land and its neighborhood, or more minute locality, should be shown, which certainly includes its position or existence within the limits of the county.

But it is said again, that if, in the case before us, the judgment of the county court does not assume the fact that the land lies in the county, nor state it as derived from any one empowered by law to make the communication, still looking behind the judgment, evidence of that fact will be found in the report of the surveyor made conformably to the act of 1821. To this we answer: first, that the report referred to was not a proceeding or evidence in the case or proceeding in rem. which resulted in the condemnation and salé of the land in question, the first step of which case was the report of the sheriff; and secondly, if we'could look behind the judgment for evidence to sustain it, we could also for evidence to render it invalid, which those who make this argument oppose, and which we think would be wrong.

It has been argued with much labor and ingenuity that the jurisdiction of the county court with relation to tax sales is not of a character so limited and inferior, nor the proceedings summary and ex parte in such case, as to make it necessary that the court should, in its judgment, state the grounds upon which its jurisdiction rests. The argument is that the judgment therefore may be liable to be reversed in a superior jurisdiction as erroneous, but not to be considered as void in a collateral proceeding. The result of this argument is that there may never have been a tax sale, which did not vest a good title in the purchaser. Many English authorities have been cited to maintain this argument. We have not felt called upon to investigate how far this ai’gument may seem to derive support from the authorities cited;' for if, upon a rigid analysis of them all, it should turn out that our courts, in their decisions upon tax sales, appear to have based themselves not upon the right reasons, still we should regard these tax sale decisions as constituting by themselves a system resting upon its own peculiar grounds and princi-pies, and we should not, for such cause, think of weakening their force.

As to the particular case of Hamilton vs. Burum, the correctness of which we have in this opinion endeavored to maintain, it was determined five years ago, and has no doubt since that time constituted the rule of action and of property on the subject. Deeming as we do all fluctuation inju-dicial decision as an evil of some magnitude, yet to disregard, under the circumstances, the authority of the case in question, except upon grounds of the most urgent character, would operate an injury as extensive and fatal to the community as in any case which can be imagined. We are all therefore of opinion that the judgment must be reversed and that the cause be remanded to the circuit court for a new trial.  