1. The Act of 5 August, 1861, "To provide increased revenue from
imports, to pay interest on the public debt, and for other
purposes," and the Act of June 7, 1862, "for the collection of
direct taxes in insurrectionary districts within the United States
and for other purposes" are to be construed together, and so
construed, their primary object is to be regarded as having been
the raising of revenue.
2. Thus construed, the first clause of the 4th section of the
act of 1862 -- which clause enacts
"That the title of, in, and to each and every piece and parcel
of land upon which said tax has not been paid as above provided
shall thereupon become forfeited to the United States"
does not operate
proprio vigore, to vest the title of
the land in the United States upon nonpayment of the tax, that
clause being followed immediately by another which says
"and upon
the sale hereinafter provided for shall vest
in the United States or in the purchasers at such sale in fee
simple, free and discharged from all prior liens, encumbrances,
right, title, and claim whatsoever."
The first clause merely declares the ground of the forfeiture of
title -- namely nonpayment of taxes -- while the second clause was
intended to work the actual investment of the title in the United
States or in the purchaser at the tax sale through a public act of
the government.
3. Under the act of 1862, the right to pay the tax and relieve
the land from sale is not limited to sixty days after the fixing of
the amount of it by the proper authorities. Payment prior to sale
is sufficient.
4. Payment of the tax, which the act requires to be made by the
owner, need not necessarily be made by the owner in person. It is
enough that it be made by him acting through some friend or agent,
compensated or uncompensated -- any person, in short, willing to
act in his behalf and whose act is not disavowed by him.
Page 76 U. S. 327
By an Act of August 5, 1861, [
Footnote 1] passed in quite the early part of the late
rebellion, Congress having laid a duty on incomes, imposed a direct
tax of $20,000,000 per annum upon the whole of the United States,
of which a certain sum was apportioned to Virginia. The act
provided that the tax should be assessed and laid on all lands
according to their money value on the 1st of April, 1862, and it
provided for the assessment and collection of the tax and
authorized the sale of so much of the lands of delinquent payers as
might be necessary to satisfy the taxes due thereon, and
furthermore provided that at any time after the advertisement for
sale and before actual sale, the delinquent taxpayer might pay the
amount assessed with ten percent penalty, and thus relieve his
lands, and yet further that in the event of a sale of property for
nonpayment of the tax assessed thereon, the owners, their heirs,
executors, administrators
or any person in their behalf
might redeem the same within a certain period thereafter. The act
also provided that if, at the time it went into operation, any of
the people of any state should be in actual rebellion, so that the
laws of the United States could not be executed therein, it should
be the duty of the President to collect both land tax and income
tax, with six percent interest, according to the provisions of the
act, as soon as the authority of the government should be
reestablished.
Afterwards, however, the rebellion having now become widespread
and assumed far greater magnitude, an Act of June 7, 1862,
[
Footnote 2] declared that when
in any state the civil authority of the government of the United
States should be obstructed by insurrection or rebellion so that
the provisions of the former statute could not be peaceably
executed, the direct taxes apportioned by that statute should be
apportioned and charged in each state wherein the civil authority
was thus obstructed upon all the lands situate therein,
respectively &c., as the same were enumerated and valued under
the last assessment and valuation thereof made under
Page 76 U. S. 328
the authority of said state or territory previous to January 1,
1861, and every parcel of the said lands, according to the said
valuation, was declared to be charged, by virtue of the act itself
with the payment of so much of the whole tax laid and apportioned
by said act upon the state wherein the same was situate as should
bear the same direct proportion to the whole amount of the direct
tax apportioned to said state as the value of said parcels of land
should respectively bear to the whole valuation of the real estate
in the said state according to the said assessment and valuation
made under the authority of the same, and in addition thereto with
a penalty of fifty percentum of said tax.
The 3d section allowed the
owner or owners of the
lands,
within sixty days after the amount of the tax
charged thereon, respectively, should have been fixed by a board of
tax commissioners (the appointment of which was provided for by the
act), to pay the same to the commissioners, and take a certificate
thereof, by virtue of which the lands should be discharged from the
tax.
The 4th section (which, if we divide the enactment into two
clauses, reads thus) enacted as follows:
1st clause.
"That the title of, in, and to each and every piece or parcel of
land upon which said tax has not been paid as above provided, shall
thereupon become forfeited to the United States."
2d clause.
"And upon the sale hereinafter provided for, shall vest in the
United States or in the purchasers at such sale, in fee simple,
free and discharged from all prior liens, encumbrances, right,
title, and claim whatsoever."
The 7th section, as amended by the Act of February 6, 1863,
[
Footnote 3] required the board
of tax commissioners in case the taxes charged on the lands should
not be paid agreeably to the provisions of the 3d section,
to advertise the property for sale and to sell the same to the
highest bidder for a sum not less than the taxes, penalty, and
costs and ten percent per annum interest on the tax. And it also
authorized the commissioners,
Page 76 U. S. 329
in all cases where the owner of the property should not, on or
before the day of sale, appear in person before them and pay the
amount of the tax, with ten percent interest thereon and cost of
advertising, or request the property to be struck off to a
purchaser for a less sum than two-thirds of the assessed value
thereof, to bid off the same for the United States, at a sum not
exceeding two-thirds of its assessed value, unless some person
should bid a larger sum, and in that case it declared that the
property should be struck off to the highest bidder, who, upon
payment of the purchase money, should be entitled to receive from
the commissioners their certificate of sale, which was thereby
required to be received as
prima facie evidence of the
regularity and validity of the sale, and of the title of the
purchaser under the same, in all courts and places, with a proviso
that the
certificate should only be affected as evidence of the
regularity and validity of the sale, by establishing the fact
that the property was not subject to taxes or that the taxes had
been paid
previous to sale, or that the property had been
redeemed according to the provisions of the act. Also, by a proviso
to this section, the owner of the property or any loyal person
having any valid lien upon or interest in the same might, within
sixty days after the sale,
appear in person before the
board of tax commissioners and, if a citizen, upon taking an oath
to support the Constitution and paying the amount of the tax and
penalty, with interest thereon, from the date when the state went
into rebellion, at the rate of fifteen percent, together with the
expenses of the sale and subsequent proceedings &c., redeem the
same; and, if the owner were a minor, a nonresident alien, a loyal
citizen beyond seas, a person of unsound mind, or under legal
disability, the period of two years after the sale was allowed for
redemption.
Under this Act of the 7th of June, 1862 -- the second of the
acts above mentioned -- a tax was assessed upon a tract of land
situate in Alexandria County, Virginia, of which one B. W. Hunter
was then owner for life, the property in remainder being in his
son, and default having been made in payment, the land was
advertised for sale. After advertisement,
Page 76 U. S. 330
but before sale, the amount of the tax, expenses, penalties, and
costs (the whole being within $100), was tendered
by a tenant,
in occupation of about half of the premises, to the
commissioners appointed for the collection of taxes under the act,
who refused to receive the money upon the ground that the tender
was not made by the owner of the land in person. The land was then,
January 11, 1864, sold, and one Chittenden became the purchaser and
received a certificate from the commissioners reciting the sale and
his purchase for $8,000. He thereupon leased the property to one
Bennett, who went into possession. After the close of the war,
Hunter, the son, who had served as an officer in the rebel army but
against whose property no proceedings for confiscation had been
instituted, and whose estate in remainder had now become absolute,
brought suit in one of the state courts of Virginia to recover
possession of the land. No question was made of his right to
recover if his title was not divested by the sale for taxes. The
court in which the suit was brought gave judgment in his favor, and
the judgment being affirmed by the supreme court of appeals of the
commonwealth, the other side brought the case here for review.
The case, as this Court considered it, required the
consideration and determination of one point only -- namely whether
the commissioners under the act could make a valid sale for taxes
notwithstanding the previous tender by the tenant of half the
premises of the amount due. Other important and interesting
questions were argued at the bar, but under the view taken of the
case by this Court, they need not be stated.
Page 76 U. S. 333
THE CHIEF JUSTICE delivered the opinion of the Court.
The case requires the consideration and determination of one
point only -- namely whether the commissioners under the act could
make a sale for taxes notwithstanding a previous tender of the
amount due,
In order to a right understanding of the real point in
controversy, however, it will be useful to notice briefly the
occasion and the objects of the enactments which have given rise to
it.
The necessities of the war arising from the rebellion demanded
immediate provision of adequate funds. For this purpose, Congress
increased the duties on customs, imposed a duty on incomes, and
laid a direct tax of twenty millions of dollars upon lands. This
latter tax was apportioned, agreeably to the direction of the
Constitution, among the several states in proportion to their
respective numbers, and it was provided that if the act could not
be carried into execution in any state in consequence of rebellion,
it should be the duty of the President to proceed, as soon as the
authority of the United States should be reestablished therein, to
collect both the land tax and the income tax, with six percent
interest.
The income tax thus imposed has never been collected, but
provision was made by the Act of June 7, 1862, for the collection
of the land tax in the insurgent states. This act or some similar
provision was necessary to enable the President to perform the duty
devolved upon him by the act of 1861. The acts of 1861 and 1862 are
therefore to be construed together. The general object of both was
the same -- namely the raising of revenue by a tax on land. The
first prescribed a mode of collection where the authority of the
general government was acknowledged, and no serious obstacle
existed to the execution of the law; the second directed
Page 76 U. S. 334
the mode of collection where this authority had been overthrown
by insurrection but had been sufficiently reestablished to make
collection, to some extent at least, practicable.
The provisions of the latter act were necessarily adapted to the
peculiar circumstances in which it was to be executed, and were in
most respects more stringent than those of the former. The first
act, for example, directed the assessment of lands by assessors to
be appointed under it; the second adopted the valuation made under
the authority of the several states prior to the rebellion, and
charged directly upon each parcel of land its proportion of the tax
apportioned to the state. Under the first act, delinquent taxpayers
were permitted, at any time after advertisement for sale and before
actual sale, to pay the amount assessed with ten percent penalty,
and thus relieve their lands. The second act imposed on each tract,
without respect to delinquency on the part of the owner, a penalty
of fifty percent in addition to its proportion of the tax upon the
state, and, it is contended, allowed payment only within sixty days
after assessment. In the earlier act, indulgent provision was made
for redemption after sale; in the latter, onerous conditions were
imposed on such redemption.
Without adverting further to particular points of difference
between the two acts, it may be observed that their most striking
contrast was in their practical application.
The several adhering states, under the act of 1861, assumed and
paid their respective quotas and collected the amount of the tax
from their own citizens under their own laws, so that in those
states the machinery of the law was never really put in action,
while in the insurgent states the act of 1862, so far as it was
executed at all, was carried into effect according to its terms by
the officials of the national government. In this way, the citizens
of the adhering states were relieved from the processes of
collection and from penalties and forfeitures for nonpayment, while
the citizens of the insurgent states who could not be thus relieved
were exposed to their unmitigated operation.
Page 76 U. S. 335
Keeping these circumstances in view, we are to consider the
effect of the sale for taxes made, as we have already stated, to
the lessor of the plaintiff. And this must depend mainly on the
construction to be given to the fourth section of the act of
1862.
This section provides
"That the title of, in, and to each and every piece and parcel
of land upon which said tax has not been paid as above provided
shall thereupon become forfeited to the United States, and upon the
sale hereinafter provided for shall vest in the United States or in
the purchasers at such sale in fee simple, free and discharged from
all prior liens, encumbrances, right, title, and claim
whatsoever."
And we are first to consider whether the first clause of this
section,
proprio vigore, worked a transfer to the United
States of the land declared to be forfeited.
The counsel for the plaintiff in error have insisted earnestly
that such was its effect. But it must be remembered that the
primary object of the act was undoubtedly revenue, to be raised by
collection of taxes assessed upon lands. It is true that a
different purpose appears to have dictated the provisions relating
to redemption after sale and to the disposition of the lands
purchased by the government -- a policy which had reference to the
suppression of rebellion rather than to revenue. But this purpose
did not affect the operation of the act before sale, for until sale
actually made, there could be, properly, no redemption. The
assessment of the tax merely created a lien on the land, which
might be discharged by the payment of the debt. And it seems
unreasonable to give to the act, considered as a revenue measure, a
construction which would defeat the right of the owner to pay the
amount assessed and relieve his lands from the lien. The first
clause of the act therefore is not to be considered as working an
actual transfer of the land to the United States if a more liberal
construction can be given to it consistently with its terms.
Now the general principles of the law of forfeiture seem to be
inconsistent with such a transfer. Without pausing to
Page 76 U. S. 336
inquire whether, in any case, the title of a citizen to his land
can be divested by forfeiture and vested absolutely in the United
States without any inquisition of record or some public transaction
equivalent to office found, it is certainly proper to assume that
an act of sovereignty so highly penal is not to be inferred from
language capable of any milder construction. [
Footnote 4] In the case of lands forfeited by
alienage, the King could not acquire an interest in the lands
except by inquest of office. [
Footnote 5] And so of other instances where the title of
the sovereign was derived from forfeiture. And in the case of
United States v. Repentigny, [
Footnote 6] where the forfeiture to the government of
lands arose from omission to perform the conditions of the grant,
this Court held that before the forfeiture could be consummated by
reunion of the land with the public domain, "a judicial inquiry
should be instituted or, in the technical language of the common
law, office found, or its legal equivalent," should take place. The
Court said further that "a legislative act directing the possession
and appropriation of the land is equivalent to office found."
Applying these principles to the case in hand, it seems quite
clear that the first clause of the fourth section was not intended
by Congress to have the effect attributed to it, independently of
the second clause. It does not direct the possession and
appropriation of the land. It was designed rather, as we think, to
declare the ground of the forfeiture of title -- namely nonpayment
of taxes -- while the second clause was intended to work the actual
investment of the title through a public act of the government in
the United States or in the purchaser at the tax sale. The sale was
the public act, which is the equivalent of office found. What
preceded the sale was merely preliminary, and, independently of the
sale, worked no divestiture of title. The title indeed was
forfeited by nonpayment of the tax -- in other words, it became
subject to be vested in the United States, and, upon public sale,
became actually vested in the United States or in any other
purchaser; but not before such public
Page 76 U. S. 337
sale. It follows that in the case before us, the title remained
in the tenant for life with remainder to the defendant in error, at
least until sale, though forfeited, in the sense just stated, to
the United States.
But it has been insisted that the right to pay the tax and
relieve the land from sale expired at the end of sixty days after
the amount was fixed by the proper authority.
It does not appear when the amount was fixed, or when the sixty
days ended. It may be inferred, perhaps, from the fact of sale that
default for payment had continued at least through that time, for
otherwise there could have been no power to sell.
If this inference be admitted, however, it by no means follows
that the right to pay the tax and have the land discharged from it
expired with the sixty days. It is more reasonable to suppose that
this right remained as long as the title of the land remained in
the owner -- that is, until after sale. And this view is confirmed
by reference to another part of the act. The seventh section gives
direction as to sales, the issue of certificates of sale to
purchasers, and proceedings for redemption after sale, and then
provides that
"The certificate of sale shall only be affected, as evidence of
the regularity and validity of sale, by establishing the fact that
the property was not subject to taxes, or that the taxes had been
paid previous to the sale, or that the property had been redeemed
according to the provisions of this act."
This provision makes it clear that proof of payment of taxes
prior to the sale invalidates the certificate, and this could not
be unless the right to pay the tax continued until the sale. This
seems to leave no doubt on the point that the right to make such
payment was not strictly limited to sixty days after the fixing of
the amount of the tax.
But to whom did the right to make this payment belong? The
obvious answer is to the owner, either acting in person or through
some friend or agent, compensated or uncompensated. The terms of
the act are that the owner or owners may pay, and it is familiar
law that acts done by
Page 76 U. S. 338
one in behalf of another are valid if ratified either expressly
or by implication, and that such ratification will be presumed in
furtherance of justice.
But it is insisted that the right of payment is limited by the
act to the actual owner in his proper person. But we perceive no
such limitation in its terms. On the contrary, the fact that the
privilege of redemption after sale is limited to the owner or the
loyal person having a lien or other interest, appearing in proper
person and taking a prescribed oath, appears to us to afford an
irresistible inference that the right of payment before sale is not
so limited. It is a right which, under the act, belongs to the
owner, and no oath is required in order to its exercise. It is a
right to be exercised under the act as a law for raising revenue.
It is expressly distinguished from the privilege of redemption
after sale and complete divestiture of title, which is accorded
upon very different principles, and in pursuance of a very
different policy. We cannot doubt that it might be properly
exercised by the owner in person or through any other person
willing to act in his behalf and not disavowed by him.
The application of these principles decides the case before us.
The title and possession of the land, at the time of assessment,
was in B. W. Hunter for life, with remainder in fee to his son, the
defendant in error. The life estate terminated and the fee became
vested in 1864. The sum due the United States for taxes, penalty,
and costs was tendered to the commissioners before sale, and it was
their duty to accept it. The tender was not objected to as
insufficient, but was refused solely because not made by the owner
in person. This refusal not being warranted by the act, the tender
must be held good. The certificate of sale under which the
plaintiff in error claims title cannot, therefore, be sustained.
The sale must be regarded in law as having been made after the
payment of the tax and as insufficient to vest the title to the
land in the purchaser.
It follows that the judgment of the Court of Appeals of Virginia
must be
Affirmed.
[
Footnote 1]
12 Stat. at Large 294.
[
Footnote 2]
Ib., 422.
[
Footnote 3]
12 Stat. at Large 640.
[
Footnote 4]
Fairfax's Devisee v.
Hunter's Lessee, 7 Cranch 625.
[
Footnote 5]
3 Blackstone's Commentaries 258.
[
Footnote 6]
72 U. S. 5
Wall. 265.
