Morton v. Reeds

Statement of the case made, and opinion.of the court delivered by

M’Girk, Judge.

Morton the plaintiff brought an action of ejectment against the defendant in the circuit court of Lincoln county to recover possession of a tract of land, lying in that county, containing two thousand arpens. The defendant pleaded not guilty. ■ On the trial, the plaintiff produced a title or deed from one Paul Chouteau to himself for the land, and also showed the land had been granted to Chouteau by the Spanish government, and confirmed by the American gov-ernmeht. To defeat the plaintiff’s right to recover, the defendant sets up title in himself by a deed from one Joseph Suggett to him, and then shows a deed from the auditor of Public Accounts of the State to Suggett, with the certificate of the auditor that the tract of land was sold to Suggett for taxes due the State.. . There was other evidence in the case, and on the .trial the defendant had judgment, to reverse which the plaintiff prosecutes his. writ of error. I will ■now proceed to detail the balance of the testimony, and state the points and objections, .as they occurred in the cir-edit court. The land was sold for taxes due for the year 1831..-' The defendant gave in evidence to support his de-fence a certificate of Elias Barcroft, Auditor of Public Accounts for the State, in substance as-follows, to wit: Ido-' hereby certify that the collector of the county of Lincoln did deliver according to law to-said Auditor a list containing the following described tract, lot or parcel of land, lying in said county (then the tract is described) which tract or tvas assessed and taxed in the name of said Paul Choutéau,, as a non-resident of said county, for the year 1831, with the sum annexed thereto as a State and county tax due thereon and unpaid, for the year 1831. Signed E. Barcroft, Auditor. The Auditor then charges the amount of the State and county taxes amounting to about the sum of nine dollars; he also charges thereon as a tax twenty-five cents for the .and twelve and one half cents for the county, as'the tax law requires him todo. The certificate then further gees on and says, “and the amount of taxes not having been paid on or before the first day of December 1831, nor were thé'tax-es or interest, accrued thereon since, paid oil or' before same was advertised for sale, whereupon the said Auditor did, by advertisement dated oil the 10thday of'April .advertise, according to law, the aforesaid tract of land for sale to.satisfy the taxes, penalties and costs,-due-and 'to be sold on the 15th day of June 1802, at the door of the. Auditor’s office; reference being had to the record .of 'the same, at the recorders office of said county of Lincoln, will more fully appear, and that on thp 15th day of June, said State and county taxes, and interest being still unpaid, the said Auditor then charged, in addition to the taxes-as.assessed, at the rate of 5 per centum per month thereon, from' the first day of December 1831, amounting together to the sum herein expressed and costs, and-1 did thereupon expose to public, sale, on the 18th day of June 1S32, (continuing the sale from day to day) at the door of said Audi tors office, pursuant to law, and the advertisement aforesaid, the following described tract, lot or parcel of land, or so much thereof, as was sufficient to satisfy and pay the 'taxes; .-pen--alties and costs then due and unpaid aforesaid, and did on sell the quantity of land or lot, or so much as is herein-'-'. after set forth expressed and designated in words and figures., for said taxes, penalties and costs, to wit, 1701 40.-100. of land assessed in the name of Paul Chouteau being survey 1714, Township 50, Range 1, W. on Cuiree, anfou’nt.of. .es,penaltes and costs nine-dollars and seVenty-seven- cents-: andido further certify • that Joseph E. Sugget't, then and there became the purchaser of the whole of the above mentioned, described and designated tract, lot or parcel of land, f°r the aforesaid sum of nine dollars and seventy-seven cents’ being the amount of taxes, penalties and costs due thereon, and has paid the same into the S&te treasury according to law,” dated Jefferson City 20th June 1832, and signed by the Auditor, which certificate was filed and recorded by the recorder of Lincoln county, on the 13th of January 1836. The plaintiff also read in evidence a deed from the Auditor for the land, dated 25th June 1834, acknowledged in August 1834, and recorded in the recorders office in Lincoln county, on the 14th of January 1836. This deed was not recorded till after the registry of the deed from Chouteau to the defendant; then comes the deed from Mr. Suggett to Reeds. Then the defendant gave in evidence a copy of an advertisement dated Auditor’s office, Jefferson City, April 16th 1832, giving notice that, on the 18th of June following, at thé~ Auditors office, in Jefferson City, certain lands of non-residents as' described in a tabular list thereto annexed, would be sold for taxes unless the taxes were paid. It appears that in that list were the lands in question assessed, as the list asserts to Paul Chouteau.— Then the defendant gave in evidence a certified copy, from the Auditors office, of a list of the sales made by the Auditor on the 18th and 19th days of June, containing the tract question, embracing various tracts of land of non-residents for Lincoln county, which list was recorded .in the recorders office for Lincoln county. The copy given in evidence was a copy of this recorded copy, as taken from the recorders office in Lincoln county. Then at the end of the list of sales, the Auditor makes the following certificate (to wit:) “I the undersigned, Auditor of Public Accounts of the State of Missouri, do hereby certify that the foregoing is a true copy of the advertisement of the sale of lands and oth-property sold to individuals, and to the State of Missou-in part or in the whole for the taxes assessed, and the penalties and costs thereon, at the door of the Auditor’s office the City of Jefferson, on the 18th and 19th of June 1832, lying and being in the said county of Lincoln; and I do further certify that the provisions of the law in such -cases made and provided have been complied with. Given under my hand and seal, &c , and signed Elias Barcroft, Auditor.” The defendant Reeds then gave some verbal testimony of Mr. Watts, whovnvas the Sheriff of Lincoln county during the years 1831-32 and 33, that several times he received from the Auditor printed advertisements of land, that he thinks they were advertisements from the Treasury department of the State of lands sold for taxes, and thinks he set them up in public places in the county, deeming it his duty to do so; one year he set up three such advertisements one of them on a post in the courthouse, one at Sutton’s mill, and one at Auburn; thinks they were of lands sold, because persons often applied to him to know whether their lands had been sold for taxes, and he referred them to that list; they were large printed papers, about the size of the record b®ok, and containing s everal leaves; he cannot say that he received and set up any such papers relating to the land taxes of 1831; cannot remember the year with any certainty ; Barcroft’s name was to the papers, and that he having referred to the record book, B pages 288-9, above set forth, he says he thinks one set of the papers'received by him contained the same names, and list of lands as in the tabular stater ment in the record, but contained more. This is substantially about all the testimony given by either party. If however, any more should be remembered, that may be of importance, I will detail it when necessary. The plaintiff asked the court for six instructions, five of which were refused and the other given. The first one refused was as follows, to wit:

1st. The defendant has not shown in evidence any legal title to the premises in any other person than the plaintiff.

2nd. The deed given in evidence by the defendant, purporting to have been made by the Auditor to J. R. Suggett for the land in question did not convey any legal or valid title to the land.

3rd. The land in question could not be lawfully sold for the non-payment of taxes, unless the same had been previ-oHsly regularly assessed for - taxation and there is no evi.-the jury of such assessment.

4th. The land in question could not be lawfully sold, for the non-payment of taxes unless the sale thereof had been previously advertised publicly according to'law, and there is no legal evidence before the jury that the sale thereof was so advertised. ■ ’' .

5th. The Auditor of Public Accounts-had no lawful authority to sell said land-for non-payment of taxes &c., unless Paul . Chouteau was a non-resident of Lincoln county, and there is no lawful evidence before the jury of that fact.

The defendant then moved the court for . these instrup-■-tions,-as follows:

. -1st; That if they believe from the evidence that the tract of land.in controversy was .sold by the-Auditor by authority of law,for- the nonpayment of taxes due thereon, and that all the essentiairequisit.es of the. law had been complied ' with in making said sale, granting a certificate to the purchaser and in conveying the. same to 3. R..Suggott, tliepur-chaser at the sale, then they must find for thcdefendant. ’•

2nd. That the defendant has shown a gopd legal title in J.. -It. Suggett, the "person under whom he claims the land ■in question, and that they, must therefore find for the defendant. .

'3rd. That, the defendant- has shown a better.title out of tire plaintiff than the plaintiff has shown.

- The court then gave these instructions for the -defendant. To the refusal to give those asked by him, and the giving .the ¿bove for the-defendant, the plaintiff excepted, and took his bill of. exceptions. The jury found a verdict for the defendant, and the court refused to gránt a new trial. The causo is brought hereby writ of error. The errors assigned by-.plainti.iPs counsel are rather general, but they are that the court refused to.give to the jury, the instructions-asked by tiie counsel for the plaintiff, and that the court erred in giving the -instructions asked for by the defendant. The first position-taken by Mr.'Bates for the. plaintiff is,-that the Rev-en'ue laws. must, he cónstrúed strictly, and that,- in this case, the laws and proceedings being summary and against com-rhon nght, mustbe-construed strictly against the power and that in such cases nothing can be presumed, but every, re-.qrdrement of‘the law must be proved. To-"support these doctrines,'he cites 4 P. R. 349 — 5 Cond. R. 28 — 2 Co.nd.' R. 151 — 4 Oónd. R. '395 — 19 J, R.' 7. :

1!^ to give an ¡n-a J°h“a-s“r iom 7’

Mr. Jameson answers to this. point, that in general law'is, as stated, bat that first,.in this case, the'law has been strictly complied with. Secondly, that an officer of the-law is by that law presumed to do 'h'is'.duty till the contrary,is proved. 3rd Starkie 1249—Bullers N. P.298—Viners’ abf. ' title.Evidence — Hardins R. 362. Upon this-doctrine of the defendants counsel, it' is supposab'le by me,-the court predicated the second instruction as numbered .in this opinion,'' among those given for the deft; 'but on - the tecord it is the third.' 'That instruction asserts that the, legal title to the land'was shown, to'be iri Suggett, and not in the. plaintiff, therefore the jury cannot find for the plaintiff. tion asserts that the title is not in the plaintiff, and disposes of the whole case, both law and fact; and for that reason is bad, but- as the law, arising on the facts, is'iairly before -.the court, I will proceéd to examine the case.

The first question is,hasthe law.been-pursued in regard' to-the salé of this land? Xhe plaintiff insists on a strict execution of thé law, and strict and legal proof must be made put. . This, he says, has'not been doné. The defendant insists that the law has been duly pursued,, and -that 'th.ere is on the recor'd legal proof thereof. I will now pay-some at-tehtion to the general, doctriné invoked by the-plaintiffs counsel. .I hold it is true that, -in exparte, and -summary proceedings, the law must be strictly pursued, in the case of M’Clung vs. Ross, it was decided by the Supreme - Court of the U. S. that under the laws of .Tennessee, where lands are sold by a summary proceeding for the'payment of ta.xes, it. is essential' to the validity of the sale and1 of the deeds made thereen; that every fact necessary to give the court jurisdiction should appear .upon the', record, 5 Wheatons R. 116. In,-the,case of Williamson et al vs Peyton’s lessee, 4 Wheat. R. 77, Ch. Justice Marshall delivered the opinion of the court. ’ That was a case where lands Were sold'for the non-payment of taxes. In that case, the following points were resolved, first, that in the case of a naked power not coupled with an interest, the law requires that every prerequisite of the law should have been complied with. Second, that the party who sets up title must furnish the necessary evidence to support it. If the validity of a deed depends on acts in pais, the party claiming under it, is as much bound to prove the performance of' the acts as he would be bound to prove any matter of record on which the validity of the deed might depend. Third, in case of sale for the non-pay - ment of taxes, where land is sold, the Marshalls deed is not even prima facie evidence that the pre-requisites required by law have been complied with, but the party claiming under it must shew positively that they have been complied with. There are many other cases cited by the counsel for the . plaintiff which go to the same point. The defendant’s coun - sel has cited some decisions from Virginia, which seem to relax this rule, but it appears that the relaxation of the rule depends on legislative enactments of the Virginia legislature. There can be no doubt the legislatures of the several states may make such enactments with regard to the rules of evidence as may suit their views of justice and policy, provided those enactments be constitutional. In Missouri, I take the law to be as laid down in the cases cited by the plaintiffs counsel, that is, that in all cases where the proceeding is either summary or exparte and especially where the same is against common right and against the law, that strict proof is to be required. This principle is in accordance with that declaration of our constitution which declares that no man shall or can be deprived of life, liberty or property without the judgment of his peers or the law of the land; there is no question >that peers here means a jury, and the law of the land is the ordinary proceedings in common cases. But as it is conceded that the collection of taxes cannot in general be made by ordinary suits, therefore, of necessity, the proceeding must be summary and ex parte. I admit there is force in the necessity, but I insist this necessity begets another necessity, which is, that the execution of the powers and laws relating to the matter shall be strictly pursued, and also strictly proved: otherwise a man may notwithstanding the constitutional inhibition, be deprived of his lands, without either the judgment of his peers or the law of the land. For these reasons I conclude the princi-pie invoked by the plaintiffs counsel is sacred in Missouri and I also hold that it to this case.

In oases where the proceeding is either sum • niary or ex-parte, and especially where the same is in derogation of common right, strict proof is necessary that the requisites of tlie law have been complied with,

The next point insisted is whether the revenue laws have been strictly complied with. The main dispute between the respective counsel on this point is about the proof as to the question whether the requisites of the law have or have not been complied with? I cannot now refer to the the exact words of the law regarding the collection of taxes, because the laws cannot now be had. The court have no public library to refer to, and the owners of the law books have, for the most part, left Palmyra and closed their offices. I will however speak of these laws as well as I can from memory and the brief before me. The first thing then is that there should be an assessment made, by a person appointed for that business, of all the taxable property in each county; that when that assessment is made, it shall be returned to and corrected by the county court; that there shall be a collector in each county, and that, with regard to non-resident owners of land, he shall make a return of them to the court, and that a list of them shall be made out and sent to the Auditor of Public Accounts; that the Auditor shall advertise all these lands for sale by advertisements, to be printed in some paper printed at or nearest to the seat of government, which publication shall be at least sixty days before the sale, and that the publicaron shall be continued, &c.; and that the Auditor shall sell the lands of the non-residents on the day appointed unless the taxes be paid; then, when the sale is made, the Auditor shall .give the purchaser a certificate of the purchase; that the Auditor shall make out and return to every county where the'lands lie, which were sold a tabular statement of the lands sold, to whom sold &c., and certify the same under his hand &c., and that three cop-, ies of this statement shall be sent to each county, one of which shall be recorded, and the other two set u.p by the Sheriff in the most public places. Here let it be remarked, ^aw Sives owner tw0 year? to redeem in, and that if, in that time, there is no redemption, the Auditor shall make the purchaser a deed. The law also requires the holder of the certificate of purchase to record his 'certificate as deeds are recorded. In this case the Auditor has made hiá first certificate, certifying that the lands were sold, and certifying a copy of his advertisement under which 'ho sold. The law requiring .this tabular statement and certificate, after having disposed of this matter', then proceeds to declare that the Auditor shall further certify that the provisions of the law in such cases made and provided have been complied with, which-copy of the advertisement so certified-and further certified shall be by the recorder recorded in the record of deeds, and a copy of such record, shall ho pritoa facie evidence of the facts contained in such certificate, whenever a sale made under such advertisement shall come in question. See session acts of January 1826, pages 49,50.

The tor’s cértifi-—upon, the fot °taxes — tb te/to'-ti™4" cordcr of the fn -tuto is sitúa-provisions'0of of a¿t t!f j6C’ 3rd, 1837, for sosimg-^aiuf" collecting • ty taxósf-'íg1'" -bronce acts,

fit ^certificate ^ of bee.t'conn^8 Plied with, is rendered by the act prima contained in ^0, yet'tfio acts of .the t^d e-evidence' °f such facts, that^should-C0»Mpn a de-meat of the ular duties'. ]Tw°,upon>thB audltor-

. Mr. Jameson counsel for the defendant, inrists that this certificate is full and complete evidence that the pre-requi-sites of the law have been complied with. The plaintiff re•pels that conclusion. J will in as few words as possible, give my view of the-meaning of the law cited, and also will my view of the force and effect of the certificate. In first place-let it be remembered that in this case the proceeding to divest the owner of his land-for the non-payment °fhis taxes is both summary and ex parte. Then the proof on the part of the purchaser must be strict. I suppose then that the legislature never intended that the Auditor should expected or required to certify to more than a witness, under the solemnities of .an oath, would be required to swear to> an(^ Biat is nothing:more nor less than what- he knows, can swear what he has done himself, to. what he has' heard, seen or felt, but a,s to that which he does not know by one of his senses, he cannot testify to. Surely beyond this the legislature did not expect the Auditor to 'go. In case'then he could not kno'w whether Paul Chouteau was a non-resident of-Lincoln county; he could not he expected .to know that an assessment had been made as the law' ^®T*ii’es. Both these.-things, in any given case, he might know;, but he could not possibly know these things in five hundred or a thousand such cases. I then suppose that the meaning of the law is, that his certificate shall be evidence as to his own act, and as to those he must know before he can certify. The law further says the certificate shall evidence of the facts therein contained. Then the facts must be'certified specially. ■ In this case no facts are certified detail, .at least, not all that the law requires to exist before a sale can be made. The facts, that the advertisement was ... . , ever printed in a paper printed m or nearest to the seat of government, and sixty days before ihe sale, are not set though as to these facts, the Auditor might know the truth, and might certify. ■ These are' important provisions of the law, the execution of which would constitute facts which the Auditor has not certified as he .might have done. My opinion is.then that the facts should be detailed, and for •want of that and other reasons the certificate proved mg, and that for the want'of due proof the and for the want also of proof of due and legal publication, the court erred in instructing the jury, that the defendant was entitled to recover. I am also of opinion that the proof of the execution of legal requirements to be done after the •sale is. made is defective. First; there is no proof that the Auditor made the three copies required to be made out and pent to the county of Lincoln ; ■ there is no proof that the two to be set up by the sheriff were received and set up, and if there is such proof, that there, is no proof that Paul Chou-teau’s name and lands were in them. These things in these ,. . . .. _ . summary ex parte proceedings require strict proof. It is greatly complained by some that, after the lapse of time, in these cases, if strict proof is required, no tax title cambe tained. My answer to this is that though it may be so, •that is no reason why great and salutary rules of law should , , , , , , , . ", . , be relaxed or broken down, but m such case no tax title ought to hold, unless the law of the land has been complied with, and because it may be difficult, or exceedingly so, to prove it, this is not a good reason why it should be assumed to have been complied with; If any such claimant • 1 - , , i bends the loss of evidence or the death of witnesses, the law has provided ample means by which he may perpetuate any fact in pais material to his case. With regard to the other instructions refused to the plaintiff, and tho se given to the defendant, a description of them would lead over the same ground already gone over. I will forbear considering them. Before I conclude this case, I will give some attention to one other point made by the defendants counsel which is that all public officers are presumed to have done their duty till the contrary is proved. This position, unless ..■../. r, . , r , , . ,, limited and restrained, is directly against the rule, that m all summary and ex parte proceedings the party claiming under them must make strict proof of the existence of every thing material, otherwise he takes nothing. The rule invoked by the defendants counsel may be the general rule, and the . r , . . , , strict proof rule the exceptions, but the rule never was ap-to cases like the present, as far as I can learn. My opinion is that the judgment of the circuit court be reversed au(l remanded for a new trial.

certificate1*1* merely states in general terms, “that $^heTawm cases b“en c°mpH-odwith,”it no evidence ^M^P^ th - law — ev fates fto the°* auditor — havs been cqmpli-ed with; indeed such a certificate ■proves nothing.

In the case of lands sold for thenon-taxes'the party claiming niust'show'1*0 that all the pre-requisites of the law stHctlymun-with. •

al ruie,Sthatr" all public officers are presumed to have done their duty until the contrary appears, is limited and restrained by tho rule, that in all summary and ex-parie proceedings, the party claiming under them must make strict proof of the performance of every pre-requisito of the law. The former may he tho general ru'e, and tho latter the exception, but tho former rule never was applicable to cases like the present.