Thatcher v. Powell, 19
Supreme Court of the
THATCHER et al.
v.
POWELL et al. Lessee.
The execution by a public officer of a
power to sell lands for the nonpayment of taxes, must
be in strict pursuance of the law uner which it is
made, or no title is conveyed.
It is essential to the validity of the sale of lands for taxes, under the laws
of
The publications which are required by law to be made, subsequent to the
Sheriff's return, and previous to the order of sale, are indispensable
preliminaries to a valid order of sale.
In summary proceedings, where a Court exercises an extraordinary power under a
special statute, which proscribes its course, that course ought to be strictly
pursued, and the facts which give jurisdiction, ought to appear on the face of
the record. Otherwise, the proceedings are not merely voidable,
but absolutely void, as being coram non judice.
In construing
local statutes respecting real property, this Court is governed by the
decisions of the State tribunals.
ERROR to the
Circuit Court of West Tennessee.
This cause was argued at the last term, and at the present term the opinion of
the Court was delivered by Mr. Chief Justice MARSHALL.
This was an action of ejectment instituted by the
defendants in error against the plaintiffs, to recover 640 acres of land in
The defendants in that Court, to support their title, read in evidence a
transcript of a record from the County Court of Montgomery county,
at their July session of 1801, as follows, viz:
‘Haydon Wells, who was appointed by the Court of
January term, 1801, to receive the list of taxable property in Captain Boyd's
company, reports to Court a list of taxable property in the county of
Montgomery, not listed for the year 1799, nor taxes paid thereon, to wit: among
others, ‘Stokeley Donaldson 2,560 acres on Yellow
Creek waters.'
‘HAYDON WELLS, T. P.'
‘ Ordered, that the clerk make out a certificate of lands and tenements
reported by Haydon Wells, Esq. for the year 1799,
that are liable to the payment of taxes, agreeably to the 14th section of ‘an
act to ascertain what property in this State shall be deemed taxable, and the
mode of collecting, accounting for, and paying public taxes.’ And now, to wit,
at January term, 1802, the following proceedings were had thereon, to wit, on
motion, it is ordered, adjudged, and decreed, that the tracts of land entered
in the names of the following persons, be subject to
the payment of taxes due thereon, agreeably to report of Haydon
Wells, Esq. receiver of taxable property, as delinquent for the year 1799,
agreeably to law, and that execution issue accordingly:' (among others,) Stokeley Donaldson, 11 dollars 90 cents. Upon which order
or judgment, an execution, bearing date the fourth Monday in March, 1802, was
issued to the sheriff of Montgomery county, commanding him, that of the lands
of Stokeley Donaldson, reported to be in arrears for
taxes for the year 1799, he cause to be made the sum of 11 dollars 90 cents,
as, also, the sum of 1 dollar 40 cents, and charges, &c. Upon this
execution the sheriff made the following return: ‘Levied on 2133, and
advertised agreeably to the old; not sold, because the new act which requires it
to be advertised in the Gazette did not come forward till the day of sale.
‘JOHN SAUNDERS, Sheriff M. C.'
On the 1st of May, 1802, an alias execution issued, bearing date
the fourth Monday in April, 1802, in the words of the former, on which the
sheriff made the following return: ‘The within land sold agreeably to law, on
the 23d of July, 1802; at seven mills per acre.’ They also read in evidence a
deed from John Cocke, Sheriff of Montgomery county,
to Samuel Vance, one of the defendants, dated the 14th of April, 1808,
reciting, that whereas John Saunders, late Sheriff of Montgomery county, did,
on the 23d of July, 1802, by virtue of an execution or order of sale, to him
directed, from the Court of *122 Montgomery county, expose to sale 2,560
acres of land granted to Stokeley Donaldson, or so
much thereof as would be sufficient to satisfy the taxes due thereon for the
year 1799, agreeably to an act of Assembly in such cases made and provided. And
whereas Morgan Brown became the purchaser of 2,229 6-7 acres of the said land
at seven mills per acre, he being the highest and best bidder, the taxes and
costs due thereon being 17 dollars 10 cents; and the said Morgan Brown having
authorized a deed to be made therefor to Samuel
Vance: Now, the said
The lessors
of the plaintiffs then introduced grants from the State of North Carolina to Stokeley Donaldson, all dated about the same time, for two
different tracts of land of 640 acres each, a part of which are those described
in the said Sheriff's deed, all lying upon the waters of Yellow Creek, and
proved that the same lay in one connection of surveys adjoining each other, but
those described in the Sheriff's deed were of much the greatest value.
Upon this evidence the Court instructed the jury, that it was for them to
determine whether the said lands in the said Sheriff's deed mentioned, were the
same lands which the former Sheriff Saunders had sold
or not. If not the same land, then the said Sheriff's deed was not good in law.
And the Court farther instructed the jury, that the said record, or any thing
therein contained, was not sufficient in law to authorize the sale of the lands
made by the said Sheriff Saunders, nor the deed aforesaid made to the said
Vance by the said
To this instruction of the Court, the counsel for the defendants excepted. In consequence of this instruction, the jury found
a verdict for the plaintiffs, and a judgment was accordingly rendered in their favour. The cause was then brought by writ of error to this
Court.
The objections made on the record to the title papers of the plaintiff, so far
as respects their registration, have not been pressed in this Court, and do not
appear to be sustainable. The plaintiffs in error rely principally on the deed
made by
The validity of this deed depends on the act passed by the Legislature of the
State of
The 5th section makes it the duty of the sheriff to discover, and report in
writing, to the clerk of the Court, such taxable property as may not have been
returned within the time limited by law.
The 6th section directs non-residents to return to the Court an inventory of
their taxable property. The 9th section enacts, that if any non-resident ‘shall fail, by
himself, his agent, or attorney, to return his, her, or their taxable property,
as by the act directed, the property of such person, so failing, shall be
liable, and stand bound to pay a fine of fifty dollars, and a double tax, to be
collected and paid, as by this act directed, and the justice shall report the
said property to the best of his knowledge and information as aforesaid.'
The thirteenth section directs the
sheriff, in the event of the non-payment of taxes by a specified time, ‘to levy
the same by distress and sale of the goods and chattels of every person so
neglecting.'
And the 14th section directs the sheriff, in case there shall not be any goods
and chattels on which distress may be made, to report the same to the Court of
the county, whose duty it is ‘forthwith to direct the clerk to make out a
certificate of the lands and tenements liable for payment of the said taxes,
together with the amount of taxes and charges due thereon.’ This is to be
published, and if no person shall pay the taxes and other charges, within
thirty days, the ‘Court shall enter up judgment for
the amount of taxes due,’ &c. for which execution shall issue, under which
execution the land may be sold and conveyed by the sheriff.
That no individual or public officer can sell, and convey a good title
to, the land of another, unless authorized so to do by express law, is one of
those self-evident propositions to which the mind assents, without hesitation;
and that the person invested with such a power, must pursue with precision the
course prescribed by law, or his act is invalid, is a principle which has been
repeatedly recognised in this Court. The validity of the sale and deed made by
the sheriff of
Previous to an order for the sale of lands for the non-payment of taxes, the
sheriff is ordered to levy them by distress and sale of the goods and chattels
of the delinquent; and if there be no such goods and chattels,
he is to report the same to the Court, as the foundation of any proceeding
against the lands. By this act, no jurisdiction is given to the Court over the
lands of a person who has failed to pay his taxes, until the sheriff shall
report that there are no goods and chattels out of which the taxes may be made.
This being an important fact on which the jurisdiction of the Court depends, it
ought, we think, to appear on record, either in the judgment itself, or in the
previous proceedings. In this case no such report appears to have been made. Could it even be contended
that this report might be presumed, the answer is, that the terms of the order
exclude such a presumption. It would appear, that the report of the magistrate,
that the land in question had not been listed, was made in July, 1801, and that
the Court immediately made that order which the law directs to be made on the
sheriff's report, that there are no goods and chattels; and this order refers
not to any report of the sheriff, not to any deficiency of goods and chattels,
but to the report of the justice of peace, that the lands have not been listed.
This is not the only defect which
appears in these proceedings. Previous to an order for a sale of land, and
subsequent to the report of the sheriff, certain publications are to be made in
the manner and form prescribed by the act. These publications are indispensable
preliminaries to the order of sale. They do not appear to have been made. The
judgment against the land was given at January term, 1802, on motion, without
its appearing by recited or otherwise, that the requisites of the law, in this
respect, had been complied with, and that the tax still remained unpaid.
We think this ought to have appeared in the record.
The argument is, that the judgment, for these errors in the proceedings of the
County Court, may be voidable, but is not void; that
until it be reversed, it is capable of supporting those subsequent proceedings
which were founded on it.
We think otherwise. In
summary proceedings, where a Court exercises an extraordinary power under a
special statute prescribing its course, we think that course ought to be
exactly observed, and those facts especially which give jurisdiction, ought to
appear, in order to show that its proceedings are coram
judice. Without this act of Assembly, the order
for sale would have been totally void. This act gives the power only on a
report to be made by the Sheriff. This report gives the Court jurisdiction; and
without it, the Court is as powerless as if the act had never passed.
In construing the acts of the Legislature of a State, the decisions of the
State tribunals have always governed this Court. In
Judgment
affirmed.