Superior Court for Law and Equity, Mero District.
November 1808.
An historical statement of the proceedings had in a cause, duly certified by the clerk, is not evidence. He should certify a copy of the record. [Acc. Simmons v. Woods, 6 Y. 522, citing this case.]
In ejectment, the purchaser under a tax sale must show what the law requires to be of record; every thing else will be presumed regular, subject to be rebutted by evidence to the contrary. [See Rogers v. Jennings, 3 Y. 309; McCarroll v. Weeks, 2 Tenn. 217, citing this case; and see Johnson v. Mills, 3 Hay, 38, and cases there cited.]
The plaintiff claimed under a collector’s deed for taxes; the record produced showing the judgment of the Court, upon which execution issued, stated the transaction nearly thus: “It appears (said the clerk)
Page 346
from the records of the Court, that the Court, upon the report of the collector of the public taxes, ordered certain tracts of land to be sold for the taxes, among which were two tracts in the name of the person as whose property the lessor of the plaintiff purchased one.”
DICKINSON, for the defendant, took several objections to the reading of this record.
1st. The statement by the clerk is merely historical; he should have given a copy.
2d. Copies of the report of the sheriff and order of court for advertising the land should be shown.
STEWART, SHARP, and WHITESIDE, for the plaintiff, insisted that, as between the purchaser of land and third persons, the Court will not examine the regularity of the proceedings previous to judgment. It is only necessary to show the judgment and execution. But the proceedings were regular, for the clerk was not bound to give an exact copy showing every person’s lands that were ordered to be sold by the same order. It is only necessary to show what is of record. The course of rendering lands liable to taxation is this: Commissioners are appointed by the county courts for taking lists in each captain’s company at the last court in the year preceding the one for which the taxes are to be collected. After notice they take lists of every person, and report what property they can find, for which lists are not given in. Should these commissioners omit to report to the County Court such omitted property may be reported by the respective sheriff. Those who fail to return lists are liable to a double tax. The clerk of the county in which the land or property is situated, after the time allowed for returning lists and making reports, is to make out for the use of the sheriff or collecting officer a consolidated list from the returns of the different justices; their report and the sheriff’s showing the amount of taxes of each person, which, says the law, is to be a lien 011 the property for the State tax. The collectors in each county collect the taxes of that county, both for State and county purposes. If the collecting
Page 347
officer, usually the sheriff, shall not find any personal property, on which he can distrain for the taxes, and there is real property to which he can resort, he shall report all such cases to the County Court, who shall cause it to be advertised in a gazette published within the district wherein the land lies, if there be one, if not, the nearest, and also in the gazette of the public printer, stating the taxes due, and setting forth that the same will be sold for taxes. After this the Court enters up judgment, and execution issues as in other cases; advertising the lands for sale in the same papers as in other cases of selling lands under execution the collecting officer makes a deed.[1] The law does not require a report to be recorded, it is only evidence to the Court. All that we are bound to show is, that it was ordered to be advertised, the judgment, execution, and sheriff’s deed; even taking these as the proceedings of a court of limited jurisdiction, and that it ought to appear upon what ground the Court acted, which is not admitted, we have shown enough. But we are not bound to show the evidence on which the Court decided.
DICKINSON, in reply. — The Court are not to
Page 348
anticipate what defence can be set up. Sales for taxes are strictly looked into; it was so said in relation to sales under the direct tax in the Federal Court, and the Court there said it would see that the powers given to officers had been pursued. Suppose the taxes had been paid, the whole proceedings would be void. The record ought to show that the taxes were not paid.
It is true that in 2 Haywood, 80, the judges were divided, whether it were necessary to show a judgment upon a sheriff’s sale. In this State, however, it has always been thought necessary.
POWEL, J. —
We cannot receive this record. The clerk should have certified a copy. An historical statement of the record is not sufficient.
HUMPHREYS and OVERTON, JJ. —
It is necessary for purchasers to show a judgment as well as execution; though the return of an execution need not be shown. All that can be required of the lessor of the plaintiff is to show what the law required to be recorded. We presume every thing else to have been regular, unless evidence be offered on the other side to remove this presumption.[1] The law did not require the report to be recorded as evidence; it was not therefore necessary. The law does not require any greater strictness in the decisions of the courts with respect to claims under sales for taxes than those under ordinary executions. In either case we must look to the principles of law, and no further. We agree with Judge Powel that the record is not sufficient. Nonsuit, which was however set aside upon payment of costs.