delivered the opinion of the court on a motion for a rehearing.
Whatever may be conceded to the position that a deed may be invalid for some purposes — as, for instance, for proving a title — and may yet be effectual for other purposes, it is incontrovertible that, if the deed be absolutely void, it is a nullity for all purposes. When counsel insists that the so-called tax-deed, in this case, was “absolutely void on its face,” and “ was evidence of nothing,” he means only, we must suppose, that the deed was invalid as a muniment of title ; but that it was not a nullity, and was evidence of something, to wit, that the plaintiff was holder of a tax-deed, or of something which he considered to be such, sufficiently to support a money judgment in his favor. The chief difficulty, however, does not lie here. The deed, whatever it may have been good for, was excluded from evidence. A court must render its decision upon the evidence embodied in the submission of the cause ; not upon evidence which might have been so embodied, but *553was not. A different course would be a travesty on judicial procedure. When the deed was once excluded it was no more in the case than if it had never been offered. The court had as much right to found its judgment upon a foreign treaty never exhibited in the court-room, as upon a paper which it had solemnly declared to be not evidence, and therefore not to be considered in making up the judgment. Exclusion must mean something. It certainly does not mean the child’s play of a mere averting of the judicial eye, and a subsequent entertaining of the same evidence for the important purpose of establishing a right of recovery. The court might have refused to admit the deed as evidence of title. It might have admitted the paper at the same time, solely for the purpose of showing that the plaintiff was holder of a tax-deed, or of what he had accepted as such. But the record shows that nothing of this sort was done. The deed was absolutely excluded. From that moment there was nothing before the court to show that the plaintiff was a holder, even of that worthless paper. The court could not deliberately consider the paper, and make up a judgment wholly dependent upon it, without a fraud upon the parties who had been notified that it would not be treated as an element in the cause. Nothing could have been further from the intention of the learned circuit judge who heard this cause. The judgment rendered, however, involves, practically, a violation of the rule which forbids such inconsistencies, and was therefore erroneous, and should be reversed.
Where the trial court has excluded a deed on the ground that it is void, and not admissible as evidence, the record not showing why it was so held to be void, we are not permitted to conjecture the reasons from an inspection of the copy in the transcript. Sufficient reasons may thus appear. But they may yet not be the real reasons which actuated the court. Defects may be apparent, which it may be guessed were considered by the trial court as sufficient for *554the exclusion of the deed, but which we would not so consider’ sufficient. In every aspect, however, there may have been still other vitiating features in the original, which we are unable to discover in the copy. The inflexible rule for an appellate court, in all such and similar cases, is, that every presumption must be in favor of the action of the trial court. We are therefore bound, in the state of the present record, to presume that there was a sufficient legal reason for the absolute exclusion of the deed, and so that the exclusion was not erroneous, as carried into effect. We have no authority here to modify that exclusion, so as to consider that deed in evidence for a particular purpose, when it was in fact excluded for all purposes. For the reasons above indicated, we did not need to be informed, outside of the record, what were the moving insufficiencies in the deed ; nor did we think it proper to search out, or even to recognize them in the transcript before us, in the absence of a record identification.
As to the claim that, upon the whole record, the judgment was for the right party, we do not see how it can be sustained. If the recitals in the tax-deed are true, with their incongruous dates, the plaintiff has been victimized by the collector in a sham sale, made without a shadow of authority, for taxes which were not due or payable. In that case, there are plenty of reasons why the plaintiff should recover his money back from the collector, who had no right to receive it; but it would be repugnant to every principle of justice, and very far from what the statute ever intended, to compel the defendant here, who had nothing to do with the transaction, who owed no taxes, and was in no default on any account, to reimburse the plaintiff, with a heavy statutory penalty added. If the recitals are untrue, it is still the collector, and not the defendant, who is in fault. The officer should be required to correct and reform his deed, according to the facts. The plaintiff might then have a valid tax-deed ; and the statute, not dealing in delusions, *555contemplates no other. He might then be in a condition to recover the land itself; or, if not that, a money judgment, under the terms of the statute. If the corrected deed should show that the defendant’s tax-title is the later, then the plaintiff ought not to recover, because, as his learned counsel says, in the brief before us : “ The last valid tax-title absolutely cuts out and destroys all former tax-titles.” The ultimate end of the law is justice ; and this it seeks to attain by the development of facts, and not of semblances which unfairly represent them.
When we say that the circuit court might have excluded the deed for certain purposes and admitted it for others, this is not to be understood as deciding that the deed offered ivas sufficient to show that the plaintiff was holder of a tax-deed, within the meaning of the statute. That question is not iioav before us. Counsel for the plaintiff points out to us that the deed held by him shows on its face that the taxes for Avhich the sale was made were not due or payable at the time of either the judgment or the sale. Yet he would have us construe the statute as giving him the right to recover on such a deed, a judgment against the defendant for money which he did not owe, concerning Avhich there was no default to the state, and on account of which the collector had no shadow of right to interfere with the defendant’s land. The statute never contemplated any such purpose. It was adopted to secure to the state the collection of her lawful dues, and to indemnify one who, having contributed such lawful dues through a tax-purchase, has failed to acquire a title to the land assessed. No court can understand the statute as a mere scheme for speculation, whereby a party may knowingly invest his money in a sham sale, and then recover it back, doubled, by way of penalty, from one who is innocent of any default, or of any connection with the transaction. Counsel may find ingenious reasons for denying the several propositions : that a deed thus obtained, being wholly without authority of law, is void for *556every purpose ; that being thus a nullity, its holder cannot be said to be the holder of a tax-deed ; unless it may also be said that one is the holder of a horse, because he owns something which is neither a horse nor any other animal. Our own conclusions upon these propositions are not now called for, since the plaintiff appears to have acquiesced in the exclusion of the deed as a nullity, and, according to the brief filed with this motion, if we rightly understand it, to have really expected and desired nothing else. The motion for a rehearing must be overruled.
All the judges concur.