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tion or benefit, and whether observed or not, they do not affect his interest. A failure to observe them can, therefore, furnish no ground of complaint on his behalf; and it is not perceived that it can constitute for him any just or equitable protection against the demands of the state for its lawful revenues. It is sufficient for his case if the provisions which do concern him have been observed; and if others which are made in the interest of the public are overlooked or disregarded, the public, through its constituted authorities, must be the proper party to complain. This is but reasonable, and this is the rule which is laid down by the authorities.

Onus of proof. At the common law it was necessary that one who claimed to have obtained title to property of another, under proceedings based upon a neglect of public duty, should take upon himself the burden of showing that the duty existed, and had not been performed, and that in the consequent proceedings the law had been complied with by those who had had them in charge. Especially if the proceedings would operate with severity, and be in their effects something in the nature of a forfeiture, the law was strict in its requirement that his evidence should exhibit the proceedings from step to step, and show that each of the safeguards with which the statute had surrounded the delinquent for his protection in this very emergency had been duly observed. And this tenderness for his interests appeared but reasonable. Of what service could it be that safeguards were provided, if observance was not essential; if a careless or incompetent officer might overlook or disregard them with impunity, and deal with the property of the citizen as if his position as an officer of the government vested him with a dispensing authority over legislation, and authorized him to make, in his discretion, a law for the case as he proceeded?

This rule of the common law has not been modified by decisions, and is still recognized and enforced where statutes have not changed it. It may consequently be said to be the general rule that the party claiming lands under a sale for taxes must show affirmatively that the law under which the sale was made has been substantially complied with, not only in the sale itself, but

in all the anterior proceedings.' But although the authorities concur in this rule with great unanimity, they are not so entirely in accord when the question regards the strictness required in the showing that shall be made. On this point some of the cases, particularly those which were decided at a very early day, have used language importing a strictness greater than in most cases it would be possible to comply with, and greater than is demanded by any considerations of policy or of justice to the party whose estate is in question. The later cases lay down a more just and reasonable rule, and warrant us in saying that the requirement of a compliance with the law, when the question arises as one of title, is satisfied by obedience to those provisions of the law which are in the nature of conditions to the power to sell, and are not merely directory under

1 Stead's Ex'rs v. Course, 4 Cranch, 403; Parker v. Rule's Lessee, 9 Cranch, 64; Williams v. Peyton's Lessee, 4 Wheat., 77; McClung v. Ross, 5 Wheat., 116; Thatcher v. Powell, 6 Wheat., 119; Games v. Stiles, 14 Pet., 322; Pillow v. Roberts, 13 How., 472; Moore v. Brown, 11 How., 414; Early v. Doe, 16 How., 610; Parker v. Overman, 18 How., 142; Little v. Herndon, 10 Wall., 26; Hughey's Lessee v. Horrell, 2 Ohio, 233; Holt's Heirs v. Hemphill's Heirs, 3 Ohio, 232; Lafferty's Lessee v. Byers, 5 Ohio, 458; Thomson's Heirs v. Gotham, 9 Ohio, 170; Kellogg v. McLaughlin, 8 Ohio, 114; Polk v. Rose, 25 Md., 153; Pope v. Headen, 5 Ala., 433; Elliott v. Eddins, 24 Ala., 508; Garrett v. Wiggins, 2 Ill., 335; Fitch v. Pinckard, 5 Ill., 69; Doe v. Leonard, 5 Ill., 140; Wiley v. Bean, 6 Ill., 302; Irving v. Brownell, 11 Ill., 402; Spellman v. Curtenius, 12 Ill., 409; Marsh v. Chestnut, 14 Ill., 224; Goewey v. Urig, 18 Ill., 242; Lane v. Bommelmann, 21 Ill., 143; Charles v. Waugh, 35 Ill., 315; Norris v. Russell, 5 Cal., 250; Keane v. Cannovan, 21 Cal., 291; O'Brien v. Coulter, 2 Blackf., 421; Williams v. State, 6 Blackf., 36; Wiggins v. Holley, 11 Ind., 2; Gavin v. Shuman, 23 Ind., 32; Ellis v. Kenyon, 25 Ind., 134; Jackson v. Shepard, 7 Cow., 88; Atkins v. Kinman, 20 Wend., 241; Sharp v. Speir, 4 Hill, 76; Sharp v. Johnson, 4 Hill, 92; Newell v. Wheeler, 48 N. Y., 486; Westfall v. Preston, 49 N. Y., 349; Hall v. Collins, 4 Vt., 316; Bellows v. Elliott, 12 Vt., 569; Brown v. Wright, 17 Vt., 97; Waldron v. Tuttle, 3 N. H., 340; Cass v. Bellows, 31 N. H., 501; Hawley v. Mitchell, 31 N. H., 575; Annan v. Baker, 49 N. H., 161; Scott v. Young Men's Society, 1 Doug. (Mich.), 119; Latimer v. Lovett, 2 Doug. (Mich.), 204; Scott v. Babcock, 3 Green (Ia.), 133; Gaylord v. Scarff, 6 Ia., 179; McGahen v. Carr, 6 Ia., 331; Morton v. Reads, 6 Mo., 64; S. C., 9 Mo., 868; Nelson v. Goebel, 17 Mo., 161; Kelly v. Medlin, 26 Tex., 48; Cummings v. Holt, 56 Vt., 384; Woodbridge v. State, 43 N. J., 262.

Where a demand before sale is required by statute, the fact of demand is not proved by the recitals in a tax deed. Lathrop v. Hawley, 50 Ia., 39.

the rules laid down in another chapter. To require more than this would be needless for any beneficial purpose, and would greatly embarrass, and in innumerable cases defeat, the collection of the revenue.

The requirement that the claimant under a tax sale should show the proceedings to have been regular was entirely according to the natural order of evidence. The original owner would show a prima facie right by producing the documents and evidence which demonstrated his original ownership. To overcome this, there must be evidence of a title overriding or extinguishing it; and such a title would not appear in the tax purchaser until the successive steps, taken in compliance with the tax law, and ending in a sale and conveyance, had been shown. To prove merely a sale would be futile, unless the power to make the sale was established; and to prove merely

1 See chapter IX. In reference to the authority of a sheriff to sell lands for taxes in North Carolina, the result of the cases has been summed up as follows:

"As a general rule, the power of the sheriff, being a naked power uncoupled with any estate of his own, is strictly construed, so that he must conform, in its execution, to the terms of the statute which creates and confers it. But still the main object of the law being to raise revenue for the state, the courts will not exact such a rigid observance of forms as will defeat such primary purpose, but will apply to sales for taxes the same reasonable rules of construction as govern sales under execution for private debts. . . Innocent purchasers are protected; that is, those who did not, and could not, because of their want of opportunity, know whether the prerequisites to the sale had been complied with or not. But when the violation of the law is known to the purchaser, and more especially when he has procured it, he will receive no protection from the law, and can take no benefit from his purchase. Such a person is not permitted to say that that which the law requires him to do is unimportant in itself, and merely directory, but he must do all the law enjoins upon him, and do it in the manner and at the time prescribed; and doubly incumbent is this duty upon him, if prejudice to another can be the result of failure or delay on his part."

So a failure to obey the statute by the purchaser and to pay immediately to the sheriff the purchase money, and to take from him after its registration a receipt, will avoid a sale. Hays v. Hunt, 85 N. C., 303.

The holder of a tax deed in Indiana must show that the person liable for the taxes had no personal property to collect from. Pitcher v. Dove, 99 Ind., 175, citing Ward v. Montgomery, 57 Ind., 276; Johnson v. Briscoe, 92 Ind., 367, and other cases.

an instrument purporting to be a conveyance would be even more idle.

Nor was there any special injustice or hardship in the rule of the law which required the tax purchaser to prove the regularity of the proceedings under which he claimed. Whether the interest of the state might not be best subserved by casting the onus of showing defects in the title on the adverse claimant, and whether, therefore, on grounds of public policy, it might not be advisable to change the rule accordingly, are questions that stand quite apart from any which concern the claims or rights of the purchaser; but regarding his position only, there was no hardship in calling upon him to give proof of his title by showing a sale made with due authority. A tax sale is the culmination of proceedings which are matters of record; and it is a reasonable presumption of law that, where one acquires rights which depend upon matters of record, he first makes search of the record in order to ascertain whether anything shown thereby would diminish the value of such rights, or tend in any contingency to defeat them. A tax purchaser

1 That the proceedings on which tax sales depend are to be proved by the records, or by the originals from which the records should be made up, the following cases are authority, if indeed any is necessary: Job v. Tebbetts, 10 Ill., 376, 380; Graves v. Bruen, 11 Ill., 431, 442; Schuyler v. Hull, 11 Ill., 462, 465; Boston v. Weymouth, 4 Cush., 538; Bucksport v. Spofford, 12 Me., 487; Adams v. Mack, 3 N. H., 493, 499; Blake v. Sturtevant, 12 N. H., 567; Pittsfield v. Barnstead, 40 N. H., 477, 493; McRory v. Manes, 47 Ga., 90; Sheldon's Lessee v. Coats, 10 Ohio, 278; Thevenin v. Slocum, 16 Ohio, 519, 531; Blodgett v. Holbrook, 39 Vt., 336; Iverslie v. Spaulding, 32 Wis., 394; Gearhart v. Dixon, 1 Pa. St., 224; Diamond Coal Co. v. Fisher, 19 Pa. St., 267; Miner v. McLean, 4 McLean, 138; Games v. Stiles, 14 Pet., 322. See ante, p. 339. But such records do not import absolute verity like those of courts, and it may be shown in contradiction to their recitals that the facts were otherwise than as there stated. Diamond Coal Co. v. Fisher, 19 Pa. St., 267, 273; Boston v. Weymouth, 4 Cush., 538, 541; Blake v. Sturtevant, 12 N. H., 567; Graves v. Bruen, 11 Ill., 431, 443; Tebbetts v. Job, 11 Ill., 453; Schuyler v. Hull, 11 Ill., 462, 465. Compare ante, p. 297. In Kellogg v. McLaughlin, 8 Ohio, 114, 116, the record of tax proceedings was held to be conclusive against the party claiming under a tax sale, but not against the party contesting it. In Miner v. McLean, 4 McLean, 138, 140, it is said that "parol evidence is not admissible to supply a defect in the record. This well established rule can admit of no exception." See Blanchard v. Powers, 42 Mich., 619. In Coit v. Wells, 2 Vt., 318, it was decided that the records of the advertisements in the case of road taxes were not evidence at

consequently cannot be, in any strict technical sense, a bona fide purchaser, as that term is understood in the law; because a bona fide purchaser is one who buys an apparently good title without notice of anything calculated to impair or affect it; but the tax purchaser is always deemed to have such notice when the record shows defects. He cannot shut his eyes to what has been recorded for the information of all concerned, and, relying implicitly on the action of the officers, assume what they have done is legal because they have done it. It is indeed a presumption of law that official duty is performed; and this presumption stands for evidence in many cases; but the law never assumes the existence of jurisdictional facts; and throughout the tax proceedings the general rule is, that the taking of any one important step is a jurisdictional prerequisite to the next; and it cannot therefore be assumed, because one is shown to have been taken, that the officer performed his duty in taking that which should have preceded it.' The tax purchaser buys, therefore, under the operation of the rule caveat emptor, and under common law rules would get nothing unless he got the land itself; but undoubtedly he has an equity in the event of his title failing, to be reimbursed for his expenditure, and this the legislature in a number of the states has deemed

all unless they contained all the particulars required by the statute. These cases, however, are not inconsistent with a resort to parol evidence as secondary to that of record when the latter is lost or destroyed.

1 A tax purchaser comes strictly within the rule caveat emptor. If his title fails because the collector failed to give notice of sale, he has no remedy against the collector. Hamilton v. Valiant, 30 Md., 139; Sullivan v. Davis, 29 Kan., 28; Casselbury v. Piscataway, 43 N. J., 353. Neither has he for any error or irregularity which defeats his title a remedy against the town. Lynde v. Melrose, 10 Allen, 49. And see Jenks v. Wright, 61 Pa. St., 410, 414. Nor has he a remedy against the municipality for whose taxes the sale was made when the statute gives none. Loomis v. Los Angeles Co., 59 Cal., 456. Nor can he have the defective tax proceedings corrected in equity; there being no element of contract in the case as between him and the land owner. Cogburn v. Hunt, 56 Miss., 718. See Logansport v. Humphrey, 84 Ind., 467; McWhinney v. Indianapolis, 98 Ind., 182. Lapse of time will not aid him unless he takes possession under his purchase. Coxe v. Deringer, 78 Pa. St., 271. A special agreement made by the board of supervisors at the time of a tax sale to refund the money if the sale proves defective is ultra vires and void. Hyde v. Supervisors, 43 Wis., 129.

2 Forqueran v. Donnally, 7 W. Va., 114.

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