The plaintiff read in evidence an Auditor’s deed to John Dement, reciting a sale of the land in question, on the 19th of January, 1833, for the taxes due thereon for the year 1832; and then by proof connected himself with the deed. He thus made out a prima facie case of title.
The defendants produced a deposition of the present Auditor, for the purpose of showing that there had been no valid listing of the land for taxation. The Auditor stated that the diagram A contained all of the evidence to be found in the records and files of his office that the land was listed for the year 1832, or the four preceding years. It appears from this diagram that taxes were charged against the land in each of those years ; but it fails to show any listing or classification of the land, either by the owner or the Auditor. This proof rebutted the presumption, arising from the Auditor’s deed, that the land liad been duly listed, and compelled the plaintiff, in order to sustain the deed, to prove affirmatively a compliance with the requirements ©f the revenue laws in relation to the listing of land for taxation. Graves vs. Bruen, ante, 431.
Whether he succeeded in so doing is the chief question in the case. At his instance, the Auditor attached to his deposition the diagrams B and C. These diagrams embrace the entries made in the books of the office, relating to the land in question, from 1818 \o 1827, inclusive. The most that can be claimed for them is, that the land was listed by Rufus Easton, in the first class, in the year 1819. The Auditor was of the opinion that the land was originally listed in that class, but was charged with taxes in a different class for the year 1832. The plaintiff called a former Auditor as a witness, who testified that, from the best of his recollection, after the year 1830, or 1831, all lands were charged with taxes as of the second class. He concurred in opinion with the present Auditor that the land was originally listed in the first class, but was taxed in another class in 1832,
On this state of case, the jury returned a verdict for the defendants—thereby affirming that there was no listing of the land for 1832, and no prior listing that authorized the sale of the land for the taxes charged against it for that year. In the opinion of the Court they were clearly justified in so finding. It is evident from the amount of tax charged in 1832, that the land was not then considered as belonging to the first class—the class in which it was originally listed for taxation by the owner, if at all, and in which, up to that year, it had been charged with taxes. We look in vain through the evidence for any authority in the Auditor to charge the land with taxes in the second class. If a new classification was not necessary after the passage of the act of the 1st of January, 1831—abolishing the third class— the Auditor was still bound to adhere to the former listing. A listing in one class gave him no power to charge the land with taxes in a different class. The classification is the basis of the right to charge and collect the taxes, and must be strictly pursued. It may be that a new listing was made after 1831, either by the owner or the Auditor; but if so, the proof of it should distinctly appear, and not be left to inference or conjecture.
The judgment of the Circuit Court must be affirmed, with costs.
Judgment affirmed.