Where a deed, executed in Wisconsin and attested by the seal of
a court stamped upon the paper instead of wax or a wafer, was
offered in evidence upon a trial in Arkansas, it was properly
received.
Where a deed from the sheriff for land sold at a tax sale
recited an assessment for taxes which remained unpaid, the
advertisement of the land, and offering it for sale, its being
struck down to the highest bidder, who paid the purchase money and
received a certificate, this deed ought to have been received in
evidence. The law of Arkansas says that the deed shall be evidence
of the regularity and legality of the sale.
But even if this deed had been insufficient as a proof title, it
ought to have been received, in connection with proof of
possession, to establish a defense under the statute of
limitations.
Possession under this deed would have been sufficient proof for
adverse possession.
The circumstances of the case, and the points of law upon which
it came up to this Court, are fully stated in its opinion.
MR. JUSTICE GRIER delivered the opinion of the Court.
Roberts, the defendant in error, was plaintiff below in an
action of ejectment for 160 acres of land. Pillow, the defendant
below, pleaded the general issue and two special pleas: the first
setting forth a sale of the land in dispute for taxes more than
five years before suit brought, the second pleading the statute of
limitation of ten years. These pleas were overruled on special
demurrer as informal and insufficient, and the judgment of the
court on this subject is here alleged as error. But as the same
matters of defense were afterwards offered to be laid before the
jury on the trial of the general issue and overruled
Page 54 U. S. 473
by the court, it will be unnecessary to further notice the
pleas, as the defense set up by them, if valid and legal, should
have been received and submitted to the jury on the trial. In the
action of ejectment, with the exception, perhaps, of a plea to the
jurisdiction, any and every defense to the plaintiff's recovery may
be given in evidence under the general issue. And as the decision
of the court on the bills of exception will reach every question
appertaining to the merits of the case, it will be unnecessary to
decide whether those merits were sufficiently set forth in the
special pleas, to which the defendant was not bound to resort for
the purpose of having the benefit of his defense.
On the trial, the plaintiff below gave in evidence a patent for
the land in dispute from the United States to Zimri V. Henry, dated
7 May, 1835, and then offered a deed from said Henry to himself,
dated 10 November, 1849. This deed purported to be acknowledged
before the clerk of the Circuit Court of Walworth County in the
State of Wisconsin, and was objected to 1st, because there was no
proof of the identity of the grantor with the patentee other than
the certificate contained in the acknowledgment; 2d, because the
certificate of acknowledgment was not on the same piece of paper
that contained the deed, but on a paper attached to it by wafers;
and 3d, because the seal of the circuit court authenticating the
acknowledgment was an impression stamped on paper, and not "on wax,
wafer, or any other adhesive or tenacious substance."
The first two of these grounds of objection have not been urged
in this Court and very properly abandoned as untenable. The third
has been insisted on, and deserves some more attention. Formerly
wax was the most convenient, and the only material used to receive
and retain the impression of a seal. Hence it was said:
"Sigillum est cera impressa; quia cera, sine impressione, non
est sigillum." But this is not an allegation that an
impression without wax is not a seal. And for this reason courts
have held that an impression made on wafers or other adhesive
substance capable of receiving an impression will come within the
definition of
"cera impressa." If, then, wax be construed
to be merely a general term including within it any substance
capable of receiving and retaining the impression of a seal, we
cannot perceive why paper, if it have that capacity, should not as
well be included in the category. The simple and powerful machine
now used to impress public seals does not require any soft or
adhesive substance to receive or retain their impression. The
impression made by such a power on paper is as well defined, as
durable, and less likely to be destroyed or defaced by vermin,
accident, or intention than that made on
Page 54 U. S. 474
wax. It is the seal which authenticates, and not the substance
on which it is impressed, and where the court can recognize its
identity, they should not be called upon to analyze the material
which exhibits it. In Arkansas, the presence of wax is not
necessary to give validity to a seal, and the fact that the public
officer in Wisconsin had not thought proper to use it was
sufficient to raise the presumption that such was the law or custom
in Wisconsin till the contrary was proved. It is time that such
objections to the validity of seals should cease. The court did not
err, therefore, in overruling the objections to the deed offered by
the plaintiff.
After the plaintiff had closed his testimony, the defendant
offered in evidence two certain deeds from Miller Irwin, Sheriff of
Phillips County and assessor and collector of taxes therein, to
Richard Davidson, dated on 22 October, 1844, one for the north half
and the other for the south half of the quarter section of land now
in dispute. On objection, the court refused to permit these deeds
to be received, and sealed a bill of exceptions. The defendant then
offered the same deeds to Davidson, and in connection therewith a
deed from Davidson to Armstrong and also a deed from Armstrong to
the defendant, and to accompany them with proof of possession by
himself and those under whom he claims for more than ten years as
to the south half of said land and more than five years as to the
whole of it. The plaintiff objected to this evidence.
"And it was by the court ruled that the possession of such
deeds, accompanied by possession of the land, was not sufficient to
prove such possession of the land to be adverse to the plaintiff
and his grantor without further proof that the defendant or his
grantors claimed adversely, so the court refused to permit and
deeds to be read in evidence to the jury."
These bills of exception may be considered together. They
present two questions -- 1st, whether, by the law of Arkansas, the
deeds offered in evidence and which were regularly acknowledged and
recorded according to law should have been permitted to go to the
jury as evidence of a regular sale of the land mentioned therein
for taxes, and 2d, whether, without regard to their validity as
elements of a good legal title
per se, they should not
have been received for the purpose of showing color of title, in
connection with possession by the persons claiming under them, for
a length of time sufficient by law to bar the entry of
plaintiff.
I. In considering these questions it will not be necessary to
set forth at length all the provisions of the revenue laws of
Arkansas for compelling the payment of taxes assessed on land. A
brief recapitulation of their most prominent provisions will
Page 54 U. S. 475
suffice. These laws make it the duty of the collector, on or
before 15 September of each year, to make a list of lands assessed
to persons nonresident and the tax due thereon, with a penalty or
addition of 25 percent, and to file this list with the county
clerk. He is directed also to set up a copy of the same at the
court house and to publish it in a newspaper at least four weeks
before the first Monday of November, giving notice that unless the
taxes shall be paid on or before that day, the land will be sold.
On that day, the collector is authorized to offer for sale at
public auction such tracts or lots of land, or so much of them as
will be sufficient to raise the taxes and penalty assessed and
unpaid, and to continue the sales from day to day, the purchaser to
pay down forthwith the amount of taxes &c., and receive a
certificate describing the land purchased, directing, if necessary,
the public surveyor to lay off the part purchased by metes and
bounds after one year allowed for redemption. This certificate,
which is made assignable, may be presented to the collector, who is
authorized to execute and deliver a deed to the holder of it for
the land described therein. The follows the 96th section of the
act, which is as follows:
"The deed so made by the collector shall be acknowledged and
recorded as other conveyances of lands, and shall vest in the
grantee, his heirs, or assigns, a good and valid title both in law
and equity, and shall be received in evidence in all courts of this
state as a good and valid title in such grantee, his heirs, or
assigns, and shall be evidence of the regularity and legality of
the sale of such lands."
The deeds offered in evidence were regularly acknowledged and
recorded. It is not denied that Irwin, the grantor therein, was
sheriff, assessor, and collector of taxes in the County of
Phillips, as he is described in the deed. The deed for the south
half recites an assessment of the same for taxes in 1839, according
to law; that the taxes remained unpaid; that the land was regularly
advertised and offered for sale on 5 November, 1839, by auction;
struck down to William Vales, who paid the purchase money and
received a certificate; that the time for redemption having long
expired, and Richard Davidson become the assignee or holder of the
certificate; therefore the said collector granted &c., the said
south half of said Davidson, his heirs &c.
The deed for the north half has similar recitals, showing a tax
assessed in 1840, a sale in 1841, to John Powell, and a certificate
transferred by him to Davidson.
These deeds come within the description of the 96th section.
They are made by a collector of the revenue; they are acknowledged
and recorded according to law; they purport to be for
Page 54 U. S. 476
land assessed for taxes and regularly sold according to law; and
the law enacts that deeds so made shall be evidence not only of the
grant by the collector, but of the regularity and legality of the
sale of the land described therein.
It is easy, by very ingenious and astute construction, to evade
the force of almost any statute where a court is so disposed. We
might say that the expression "deeds so made by the collector"
means deeds made strictly according to the requirements of all the
preceding sections of the revenue law, and decide that only deeds
first proved to be completely regular and legal can be received in
evidence, and thus, by qualifying the whole section by such an
enlarged construction of these two words and disregarding all the
others, evade the obvious meaning and intention of the law. For if
you must first prove the sale to be regular and legal before the
deed can be received, what becomes of the provision that the deed
itself shall be evidence of these facts? Such a construction annuls
this provision of the law and renders it superfluous and useless.
The evil plainly intended to be remedied by this section of the act
was the extreme difficulty and almost impossibility of proving that
all the very numerous directions of the revenue act were full
complied with antecedent to the sale and conveyance by the
collector. Experience had shown that where such conditions were
enforced, a purchaser at tax sales who had paid his money to the
government and expended his labor on the faith of such titles in
improving the land usually became the victim of his own credulity,
and was evicted by the recusant owner or some shrewd speculator.
The power of the legislature to make the deed of a public officer
prima facie evidence of the regularity of the previous
proceedings cannot be doubted. And the owner who neglects or
refuses to pay his taxes or redeem his land has no right to
complain of its injustice. If he has paid his taxes, or redeemed
his land, he is, no doubt, at liberty to prove, it and thus annul
the sale. If he has not, he has no right to complain if he suffers
the legal consequences of his own neglect.
The plain and obvious intention of the legislature is clearly
expressed in this 96th section, that the deed made by a collector
of taxes, as authorized in the preceding section, when acknowledged
and recorded, should be received in evidence as a good and valid
title, and that the recitals of the deed showing that it was made
in pursuance of a sale for taxes, should be evidence of the
regularity and legality of the sale under and by virtue of that
act. The deed being thus made,
per se prima facie evidence
of a legal sale and a good title, the court was bound to receive it
as such. There is nothing on the face of these deeds showing them
to be irregular or void. They are each for a different
Page 54 U. S. 477
portion of the tract or quarter section of land, having known
boundaries according to the plan of the public surveys; one being
for the south half and the other for the north half of the quarter
section, it required no survey to ascertain their respective
figure, boundaries, or location.
II. But assuming these deeds to be irregular and worthless, the
court erred in refusing to receive them in evidence in connection
with proof of possession in order to establish a defense under the
statutes of limitation.
The first section of the act of limitations of Arkansas bars the
entry of the owner after ten years. And the thirty-fifth section
enacts that
"All actions against the purchaser, his heirs, or assigns, for
the recovery of lands sold by any collector of the revenue for the
nonpayment of taxes and for lands sold at judicial sales shall be
brought within five years after the date of such sales, and not
after."
Statutes of limitation are founded on sound policy. They are
statutes of repose, and should not be evaded by a forced
construction. The possession which is protected by them must be
adverse and hostile to that of the true owner. It is not necessary
that he who claims their protection should have a good title, or
any title but possession. A wrongful possession obtained by a
forcible ouster of the lawful owner will amount to a disseisin, and
the statute will protect the disseisor. One who enters upon a
vacant possession claiming for himself upon any pretense or color
of title is equally protected with the forcible disseizor. Statutes
of limitation would be of little use if they protected those only
who could otherwise show an indefeasible title to the land. Hence,
color of title, even under a void and worthless deed, has always
been received as evidence that the person in possession claims for
himself, and of course, adversely to all the world. A person in
possession of land, clearing, improving, and building on it and
receiving the profits to his own use under a claim of title, is not
bound to show a forcible ouster of the true owner in order to evade
the presumption that his possession is not hostile or adverse to
him. Color of title is received in evidence for the purpose of
showing the possession to be adverse, and it is difficult to
apprehend why evidence offered and competent to prove that fact
should be rejected till the fact is otherwise proven.
With regard to the five-years limitation, we need not inquire
whether the legislature intended that the action should be barred
where the purchaser at the tax sale was not in possession. In this
case, possession for more than five years by the purchaser from the
collector and those claiming under him was proved. In order to
entitle the defendant to set up the bar of this statute
Page 54 U. S. 478
after five years adverse possession, he had only to show that he
and those under whom he claimed held under a deed from a collector
of the revenue, of lands sold for the nonpayment of taxes. He was
not bound to show that all the requisitions of the law had been
complied with in order to make the deed a valid and indefeasible
conveyance of the title. If the court should require such proof
before a defendant could have the benefit of this law, it would
require him to show that he had no need of the protection of the
statute before he could be entitled to it. Such a construction
would annul the act altogether, which was evidently intended to
save the defendant from the difficulty, after such a length of
time, of showing the validity of his tax title. The case of
Moore v.
Brown, 11 How. 424, had reference to a deed void on
its face and the consequence of this fact under the peculiar
statutes of Illinois; it furnishes no authority for the decision of
the court below in the present case.
The judgment of the circuit court is therefore reversed, and
a venire de novo ordered.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Eastern
District of Arkansas, and was argued by counsel. On consideration
whereof, it is now here ordered and adjudged by this Court that the
judgment of the said circuit court in this cause be and the same is
hereby reversed with costs, and that this cause be and the same is
hereby remanded to the said circuit court with directions to award
a venire facias
de novo and to proceed therewith in
conformity to the opinion of this Court.