Dissenting opinion by
Greene, J.I cheerfully accord to the opinion, much ability and many correct legal propositions. But at the same time, I claim that the zeal of my brothers against tax titles, has taken them too far.
1. I assume that the first two questions for adjudication as proposed in the opinion, are not sustained by the record in the case. Ilad the assessment book been offered unaccompanied by other evidence, it might have been very properly rejected or pronounced insufficient to establish a tax title. But the facts in the case show, that the assessment book was offered with the proposition to follow it up with the other necessary proofs of title. The opinion admits that “the defendant proposed to follow this up with the after acts of revenue officers of the county so as to make out a tax title to the lot,” Under such a proposition, how could the court with propriety reject the assessment roll? This was the first link in the chain of defendant’s evidence, the very foundation upon which the superstructure of his title rested.
The assessment of the property was the first step that could be legally taken to bring the property under the revenue laws, and the assessment roll was the legitimate proof of the assessment. What item of evidence then, could, more appropriately come first in order, or what seperate item, could be more conclusive to sustain a link in defendant’s title?
The opinion claims the appointment of appraisers, to be “ as indispensable a prerequisite as the assessment itself.” The appraisement was no doubt essential, under the law, but obviously the assessment was previously required; it was altogether prerequisite to the appointment and action of the appraisers. As the assessment was the precedent act, to *152which all others referred, and to which they were subsequent* it follows as a necessary corollary, that evidence of the assessment came first in the order of proof, as the foundation upon which all the rest was supported. That the assessment roll was admissible to show the validity of the assessment, appears to my mind a self-evident proposition, against which no authority or reason can be adduced ; especially under defendant’s accompanying offer “to follow this up with the after acts,” to make out his tax title. Would not those “ after acts ” comprise the “indispensable appraisement ? ” Clearly so.
As the assessment was both anterior to and independent of the equalizing appraisement it follows that the proof of the one, would be entirely different and apart from tbe other, and therefore it was not necessary that the evidence of the two distinct facts should be blended, and amalgamated before the court and jury. Would it not harmonize quite as well with a systematic practice and rules of evidence, to admit the proof of each act, in its appropriate order ? Had the defendant rested his case, without proof of any one essential item in his title, if he neglected to show that the requirements of the revenue law had been substantially complied witb before the tax deed was issued,— under a law which did not render the deed prima facie evidence of title, — then, his muniments of title might with some show of propriety have been rejected. Eut, as it is, the action of the court appears to my mind! altogether premature and unauthorized.
2, The rejection of the tax deed, connected with the delinquent tax of 1843, because unaccompanied by proof of the preliminary steps, would have been well enough, if the defendant bad not proposed to- follow it up with the other necessary evidence. In rejecting the assessment roll the court kept out the other necessary proof. It seemed to be the settled determination of tbe court below, to admit n© evidence whatever, that was offered for the purpose of estab*153listing the “ odious tax title.” As the most essential links, the alpha and omega in defendant’s title were rejected, he might well despair of 'offering minor and intermediate points. I am at a loss to know, how it would be possible, under such ruling to get any evidence of a tax title before a court. To justify this rejection of the deed, the opinion very correctly informs us that such a deed depends for its vitality upon the legality of the proceedings of certain ministerial officers,” &c. But should a court take it for granted that such proceedings are illegal by refusing to entertain them, sufficiently to test their legality ? It is decided that the defendant should “ establish by testimony, that all of those acts which were necessary to authorize a sale and to convey title had been performed,” and stiff, the testimony which was offered to establish some of the most material of those acts, was rejected. How. could those acts he established by testimony, when the court refused to entertain the only evidence by which the acts could be proved?
I am firmly of the opinion, that the defendant should have been permitted to proceed as he proposed, step by step, with his testimony, in order to show that every thing had been done wliicb the statute makes essential to the execution 'of the deed. In this way only, could the court determine whether every substantial requisite of the law had been complied with.
If the defendant had proposed to rest his title upon the assessment roll, or upon the deed alone, if he had not distinctly announced his purpose to follow up with other testimony, “ so as to make out a tax title to the lot,” the ruling of the court, could with more propriety be affirmed.
It often happens that courts evince an unyielding bias against tax titles ; so strong indeed as often to prevent the manifest intentions of the revenue laws. Such extremes, —though honestly executed — often result in great injustice and cast an unfortunate stigma upon the revenue laws of the land, by rendering them inoperative,
*154True, in an ex parte proceeding- of any kind against property, more than ordinary strictness should be observed. Before deciding that a man is divested of his title to land by tax proceedings, a court should be well satisfied that every substantial requirement of the law has been observed, and that there is no radical defect in the proceeding. But this strictness should not be carried to such extremes as to prevent the very first principles of the common law, which impart so much vitality, uniformity and harmony to our system of jurisprudence. If tax titles are so repulsive, let the appeal be made to the lawmakers ; but let those fundamental rules in the law of evidence, and those first principles in the doctrine of presumptions, remain as established by the wisdom and experience of ages. In the opinion before us, such strict performance in every particular, whether essential or non-essential, is enjoined, and such a sweeping system of rejecting tax sustaining evidence is recognized, that it would be utterly impossible in any case to sustain tax deeds. Still the legislature intended that they should be sustained and that such “ conveyance shall vest in the person to whom it is given, an absolute estate in fee simple.”
It is.the true province of a court to avoid either extreme, to see that the intentions of the law, are substantially subserved, and that the delinquent tax payer be required to conform to, the revenue regulations of the state. It too often happens that an over generous concern for the delinquent tax payer causes the equally important interest of the public to be overlooked.
No revenue law can preserve vitality and force under the prevailing opinion that a tax title cannot be rendered valid. While it remains a law, let it be manfully, fearlessly enforced ; if odious and oppressive, let it be repealed. In this way only, can our tribunals of justice retain that majesty of law and order, so essential to our free institutions.
3. The majority of the court have seen fit in this case *155to overrule the decision in Noble v. The State, 1 G. Greene, 325. I regret especially that so little weight should be-attached to a former decision of this court. At the time of that decison, I did not understand Judge Kinney as dissenting. Had I known it, 1 certainly should have placed him-right in the report of the case. Until the case at bar came up I have always regarded Noble v. The State, as decided by a unanimous opinion. It is at least the opinion of a majority of the court, and therefore a decision of the supreme-court, entitled to some consideration, and should only be overruled, for strong and obvious (reasons, upon principles of general application.
The overruled point involves only a question of construction ; and it must be conceded, I think, that strong arguments can be given in favor of the construction in Noble v. The State; much stronger than those advanced in favor of the present construction. Although the reasons aire but briefly expressed in the overruled opinion, I do not consider it necessary to repeat them here.
But admit the full force of the construction given in this ease to section fifty-three; admit that the treasurer was authorized to receive the taxes on the delinquent list of 1844,. up to the first of January, 1848, does it necessarily follow that the provisions of section fifty-four coidd not be enforced-in accordance with the very letter of that section ? It provides “ that when the taxes upon lands in any county have-remained thus due and unpaid for the said term of two-years, it shall be the duty of the county treasurer- to. make report thereof to the district court,” &c. In this case-the taxes had been due and unpaid over two years before the report was made to the court, and subsequent to that time the sale took place, and the deed was executed over two years and a half after the taxes became delinquent, or “ thus due and unpaid for the said term of two years ” as stated and limited by sections fifty-two and fifty-four, Now, take ¡these two sections together with the obvious reference which *156§ 54 makes to § 52, and it necessarily follows, that the treasurer was justified in making his report preparatory for judgment and sale at the first term of court after the taxes had been two years delinquent. It follows too, that the sale and deed in this ease were not prematurely made. But according to the construction given in this case to § 53, the effect of them might have been avoided if the delinquent tax had been paid at any time before January 1, 1848. If paid within the time extended by the opinion, the fact could have been shown to the court, and the deed rejected. But it is not pretended that the tax was paid, within the period of the most extended construction, and consequently the deed should have been entertained as prima fcioie evidence of defendant’s title.
Under the overruling construction, the act is rendered nugatory for one year after the delinquency. The tax j)ayeT is encouraged to a third years delay, without pa3dng any interest or penalty. Can this be regarded as the spirit and policy of the law ? In nearly every section of the act, with the single exception of section fifty-three, the legislative intention that the taxes should remain delinquent only two years, is to my mind obviously expressed, and as this was the construction of the supreme court at the time the court below rejected the deed, it follows that the court was in error under the authorities then in force. It is to he regretted that the opinion in this case is calculated to encourage a disregard of supreme court decisions. If this court depart so readily from their own decision, upon mere .points of doubtful construction, how can it be expected that their decisions will command more respect from other courts.
Certainty and uniformity are of paramount importance, in judicial decisions ; especially so in cases affecting the title to real estate.
For over two years, Noble v. The State, has been the settled laws upon which our citizens reposed with confidence, in their real estate transactions, but now, without regard to *157that authority, or the rights which have been vested under it, and upon an unimportant question that has no bearing upon any other statute, or proceeding at law, we have that authority reversed and all rights acquired under it treated as nullities. Another change in the bench may result in another change in the construction of this statute. Well may men cry out against the uncertainties of the law!
Wright and Knapp, for plaintiff in error. A. Ilall, for defendant.But for this departure upon so slight a ground from former adjudication, I could perhaps have yielded my other objections in silence to the greater wisdom and experience of my seniors.