Plaintiff adduced in evidence a grant from the State to Jacob Grazier, dated 5th Sept. 1759, for a large quantity of land embracing the locus inquo.
Also, proof of a sale of sixty-seven acres (the land in dispute) as the property of the grantee, Grazier, to William Forbes, by Alexander McKay, sheriff of Cumberland, for taxes due on the said land. The evidence to establish this sale, consisted of exemplifications of the record of Cumberland County Court, as follows:
"EXTRACTS."
"A list of Taxables in Capt. Evans' district for the year 1821, returned into the office of the clerk of the county court, *Page 60 on which list was 4,500 acres of land, listed by John Dickson for Conrad J. Grazier."
"At June Term of the County Court, 1823, the sheriff returned a list of lands advertised to be sold for taxes for the year 1821, which was read in open court, and a copy set up in the court room, on which list was Conrad Grazier 4,500, on Harrison's creek, $2 79 taxes."
At September Term, 1823.
"An acc't. of the sales of the lands sold on the 4th day of August, 1823, to satisfy the taxes and costs of advertising, c., due thereon, for the year 1821, the same having been advertised according to law, was returned into office, and which account was — `Conard Grazier 4,500 acres,} `Wm. Forbes took 6-10 acres,} $2 79 being the last and lowest bidder.'"
And he further adduced oral testimony from the clerk of the County Court, that he had made diligent search in his office for the tax list returned by the sheriff, nothing the lands upon which the taxes were unpaid, with the names of the owners, c., and that the same could not be found. There was no proof that it had ever been seen in the office.
Plaintiff also put in a deed from William Forbes to Wm. Nunnery, dated 21st January, 1828, for the same land.
Also, a deed from William Nunnery to Lucy Ann and Belinda, the female plaintiffs.
It was proved that the defendant had cut timber and got turpentine on the land in dispute, previously to the bringing of this suit in 1850.
The plaintiffs having closed their case, the defendant's counsel moved for a nonsuit, on the ground, that there was a misjoinder of the femes covert with their husbands. The motion was overruled, and the defendant excepted.
The defendant then introduced a grant to Wm. H. Melvin, dated in 1845, and a deed from said Melvin to himself.
The defendant relied upon a defect in plaintiff's title through the sale for taxes, contending that there was no evidence of *Page 61 the sheriff's having returned his list of taxes with the delinquents, into the office of the County Court according to law, and that this was necessary to a valid sale: The Court, however, regarded the record as furnishing some evidence of the existence and return of the list, and left it to the jury to decide. He instructed them on this point, that it was necessary for the plaintiffs to show that the sheriff had a tax list in his hands, and that the same was returned into the County Court: also a list of the lands on which taxes were due and unpaid, and the names of the owners as required by law: That if they were satisfied of this from the proofs before them, the plaintiff had the older, and therefore, the better title; and in the absence of proof of any actual possession, the law would construe them to be in possession, and they would be entitled to recover. To which instructions defendant excepted.
Verdict for the plaintiffs.
Defendants moved for a venire de novo upon the several grounds of exception above stated. Rule discharged, and appeal to the Supreme Court. The objection to the form of the action cannot prevail. It does not appear from the statement of the case whether the alleged trespass was committed before, or after the marriage of the femes plaintiffs. If before, then the action of trespass vi et armis, in the names of the husbands and their wives is undoubtedly correct. If after, there might be some doubt, but upon that we express no opinion: because on the motion to nonsuit, we ought not to presume any thing against the plaintiffs, which with equal probability, might be presumed for them.
The objection to the title of the plaintiffs upon the merits, is still more unfounded. The minutes of the County Court of Cumberland, at its June Term, 1823, showed that the sheriff did return a list of the lands, which he proposed to sell for the taxes due on the tax lists of 1821, which was read in open *Page 62 Court, and a copy set up in the court room, on which was mentioned the tract in question, the name of its owner, where it was situated, and the amount of the tax unpaid. All this was recorded just as the Act required, (see 1 Rev. St. ch. 102, sec. 52,) and thereby became, as was said in Kellyv. Craig, 5 Ired. Rep., 129, something in the nature of a judgment. Whether it was necessary for the purchaser, or one claiming under him, after producing this record in support of his title, to go farther and produce the tax list itself, which was returned by the sheriff, may admit of some question. The reasoning of the Court, in Kelly v. Craig, upon the intention of the Act of 1819, from which, 52d sec. of 102d ch. of the Rev. Stat., was taken, would seem to favor the idea that the record alone would be sufficient. "The intention of the Act of 1819," says the Court, "was to provide a more certain and probable notice to the owner, of the intended sale of his land, and of the reason therefor, by requiring it to be given in open court, at the term next preceding the sale, and to be recorded; so that the rumor thereof, at least, might reach him; and that upon investigation, he might find at a known place, a permanent and certain evidence of the truth of the matter. So, too the bidders cannot be deceived by any false representations, as they can respecting advertisements in the country, or in a newspaper, as the evidence is of record, and at hand, and if they choose to look, they must know, whether the sheriff has done his duty by the owner or not. If he has not, his sale ought not to pass the title, more than if it were by private contract, or was not made at the court house, or on a wrong day of the week; in all which cases, the wrongful conduct of the officer must be known to the bidder, and therefore his purchase ought not to stand. Indeed, the proceeding directed by the Act of 1819, is very much in the nature of a judgment; and a purchaser can as readily search for and find the one of record as the other, and therefore there is as little reason to dispense with the one as the other." If it be true, then, that the production of the record of the sheriff's return of the tax list be essential to the support of the purchaser's title, why *Page 63 should the list itself be required? That being a loose piece of paper, deposited in the clerk's office, may be easily misplaced or lost, and therefore will not afford much protection to the owner against an unlawful sale of his land, or much security to the purchaser as a safe guard to his title. Besides, in showing a judgment as the foundation of a title, it is not necessary to produce the preliminary proceedings, and we can see no reason for producing them in a case like this, where the recorded tax list is in the nature of a judgment.
But if this be not so, we think the record was testimony sufficient to be left to a jury, that the tax list was in the hands of the sheriff, and was returned by him into open court as required by law. We think farther, that this testimony was admissible for that purpose, after it had been proved by the clerk that he had made diligent search for the paper and could not find it in his office.
There is, in our opinion, no error in the judgment, and it must be affirmed.
Judgment affirmed.
PER CURIAM.