Where the language of the statute was
"That public notice of the time and place of the sale of real
property for taxes due to the Corporation of the City of Washington
shall he given by advertisement inserted in some newspaper
published in said city once in each week for at least twelve
successive weeks,"
it must be advertised for twelve full weeks, or eighty-four
days.
Therefore, where property was sold after being advertised for
only eighty-two days, the sale was illegal, and conveyed no
title.
This was an ejectment brought by Rhoda E. Homans to recover that
part of lot number four, in square number seven hundred and thirty,
in the City of Washington, beginning for the same at a point on the
line of A Street South at the distance of thirty-two feet from the
northeast corner of said square; and running thence due west with
the line of said street, fifty feet and five inches; thence due
south, fifty feet; thence due east, fifty feet and five inches;
thence fifty feet to the place of beginning, and also into three
messuages or tenements with the appurtenances situated thereon in
the county above named.
Upon the trial, the plaintiff showed title in herself, and the
defendant made title under a tax sale, when the jury, under the
instructions of the court, found a verdict for the plaintiff. The
following bill of exceptions explains the case.
"
Defendant's bill of exceptions"
"At the trial of the above cause, after the plaintiff's lessor
had shown a legal title in herself, a devisee of D. Homans, who
died in August, 1850, to the fifty feet five inches of ground
fronting on A Street by fifty feet deep, a part of lot 4, in square
No. 730, in Washington City, with the houses thereon, being the
premises described in the declaration; entitling her, as admitted
prima facie, to recover the same as such devisee, and that
the defendant held possession thereof at the commencement of this
action. The defendant thereupon, to maintain the issue on his part,
offered evidence of a tax title from the Corporation of the City of
Washington, to sustain which, and to show that the requirements of
the Act of 26th May, 1824, had been complied with, proved the
notice of the time and place of the tax sale to
Page 57 U. S. 611
have been given by the city collector, by advertisement in the
national Intelligencer, in the following words:"
"COLLECTOR'S OFFICE, CITY HALL"
"August 25, 1848"
"On Wednesday, the 15th day of November next, the annexed list
of property will be sold by public auction, at the City
Hall in
the city Hall in the City of Washington, to satisfy the
corporation of said city for taxes due thereon as stated, unless
the said taxes be previously paid to the collector, with such
expenses and fees as may have accrued at the time of payment."
And amongst other property so advertised was the following:
bwm:
------------------------------------------------------------------------------
No. of No. of Lot Assessed to Taxes Total
Sq.
------------------------------------------------------------------------------
730 Pt. 4, fronting 50 ft. Daniel Houmans 1845 1846 1847
$29.82
5 in., and improvement 9.94, 9.94, 9.94
on A Street, and 50 ft.
deep, lying next to
the eastern 32 ft. of
said lot
------------------------------------------------------------------------------
ewm:
"And the insertion of said advertisement was on the following
days:"
"Saturday, 26th Aug., 1848."
"Saturday, 2d Sept., 1848."
"Saturday, 9th Sept., 1848."
"Thursday, 14th Sept., 1848."
"Thursday, 21st Sept., 1848."
"Saturday, 30th Sept., 1848."
"Saturday, 7th Oct., 1848."
"Saturday, 14th Oct., 1848."
"Saturday, 21st Oct., 1848."
"Saturday, 28th Oct., 1848."
"Saturday, 4th Nov. 1848."
"Saturday, 11th Nov. 1848."
"Wednesday 15th Nov. 1848."
"And that on such last day above mentioned, the said sale took
place and the defendant became the purchaser of said premises for
$55. Whereupon the plaintiff prayed the opinion and instruction of
the court to the jury"
"that the said sale was invalid and of no effect, and passed no
title to the defendant in the premises in question because a period
of twelve full and complete weeks had not intervened between the
26th August, the time of the first advertised notice of said sale,
and the 15th November, 1848, the day or time of said sale, but a
period of eleven weeks and four days only,"
"which opinion and direction the court gave as prayed for by the
plaintiff, to which opinion and direction of the court to the jury,
the defendant by his counsel, prayed leave to except, and that the
court would sign and seal these his bill of exceptions, according
to the form
Page 57 U. S. 612
of the statute in such cases made and provided, which is
accordingly done this 17th day of May, 1853."
"JAS. S. MORSELL [SEAL]"
"JAS. DUNLOP [SEAL]"
"Test: JNO. A. SMITH, Clerk. "
Page 57 U. S. 615
MR. JUSTICE WAYNE delivered the opinion of the Court.
This is an ejectment suit for part of lot No. 4, in square, No.
730, in the City of Washington.
The only question raised by counsel in the argument of the case
here is whether, where property has been assessed for taxes, it can
be considered as having been regularly advertised
Page 57 U. S. 616
and regularly sold if it shall be sold before twelve full weeks
or eighty-four days have passed from the date of the first
advertisement. Eighty-four days advertisement were not given when
the property in dispute in this case was sold. Upon the trial in
the circuit court, the plaintiff in that court prayed its
instruction to the jury in these words:
"That the said sale was invalid and of no effect, and passed no
title to the defendant in the premises in question, because a
period of twelve full weeks had not intervened between the 26th of
August, the time of the first advertised notice of sale, and the
15th of November, 1848, the day or time of sale, but a period of
eleven weeks and four days only."
The court gave the instruction accordingly. The defendant's
counsel excepted to the same. The court, upon his prayer, allowed
it, and the case is regularly here by writ of error.
It appears that the notice for sale of the property in dispute
was inserted in the National Intelligencer twelve times in
successive weeks, the first insertion being on Saturday, the 26th
of August, and the last on the 15th of November, the day of sale.
Including the 26th of August as one of the days of the notice, and
the 15th of November necessarily as another, we find that the
notice was given only for eighty-two days. The language of the
statute regulating the notice to be given is in these words:
"That public notice of the time and place of the sale of all
real property for taxes due the Corporation of the City of
Washington shall be given hereafter by advertisement, inserted in
some newspaper published in said city once in each week for at
least twelve successive weeks."
Now the first week following the date of the advertisement
expired with the next Friday, the tenth of November, and, if the
computation is carried out, it will be found that the twelfth week
expired on the 17th of November. But the sale was made two days
before, on the 15th of November, the last insertion of the notice
being on the day of sale.
So there were eleven insertions of the notice in the newspaper
in different weeks making, with the first, twelve after the
expiration of the week from the first insertion, and the point to
be settled is whether the statute means that twelve insertions in
successive weeks is sufficient notice without respect to the number
of days in twelve weeks. We do not doubt if the statute had been
"once in each week for twelve successive weeks," a previous notice
of the particular day of sale having been given to the owner of the
property, that it might very well be concluded that twelve notices
in different successive weeks, though the last insertion of the
notice for sale was on the day of sale, was sufficient. But when
the legislator has used the words "for at least twelve successive
weeks," we cannot doubt that the
Page 57 U. S. 617
words, at least as they would do in common parlance, mean a
duration of the time that there is in twelve successive weeks or
eighty-four days. Every statute must be construed from the words in
it, and that construction is to be preferred which gives to all of
them an operative meaning. Our construction of the statute under
review gives to every word its meaning. The other leaves out of
consideration the words "for at least," which mean a space of time
comprehended within twelve successive weeks or eighty-four days.
The preposition "for" means, of itself, duration when it is put in
connection with time, and as all of us use it in that way in our
everyday conversation, it cannot be presumed that the legislator,
in making this statute, did not mean to use it in the same way.
Twelve successive weeks is as definite a designation of time,
according to our division of it, as can be made. When we say that
anything may be done in twelve weeks, or that it shall not be done
for twelve weeks, after the happening of a fact which is to precede
it, we mean that it may be done in twelve weeks or eighty-four
days, or, as the case may be, that it shall not be done before. The
notice for sale, in this instance, was the fact which was to
precede the time for sale, and that is neither qualified nor in any
way lessened by the words "once a week," which precede in this
statute those which follow them, "for at least twelve successive
weeks." We think that the court did not err in refusing to give to
the jury the instruction which was asked by the defendant upon the
trial of this case.
The construction of the statute will be recognized to be in
harmony with that policy of the law which experience has
established to protect the ownerships of property from divestiture
by statutory sales where there has not been a substantial
compliance with the law by which a public officer is empowered to
sell it.
Property is liable to be sold on account of an undischarged
obligation of the owner of it to the public or to his creditors.
But it can only be done in either case where there has been a
substantial compliance with the prerequisites of the sale, as those
are fixed by law. Any assumption by the officer appointed to make
the sale or disregard of them the law discountenances. He may not
do anything of himself, and must do all as he is directed by the
law under which he acts. He may not, by any misconstruction of it,
anticipate the time for sale within which the owner of the property
may prevent a sale of it by paying the demand against him, and the
expenses which may have been incurred from his not having done so
before. This the law always presumes that the owner may do until a
sale has been made. He may arrest the uplifted hammer of
Page 57 U. S. 618
the auctioneer when the cry for sale is made if it be done
before a
bona fide bid has been made. The authority of the
officer to sell is, as it was in this case, "unless the taxes be
previously paid to the collector, with such expenses as may have
accrued at the time of payment." There is a difference, it is true,
in the strictness required in a tax sale and that of a sale made
under judgment and execution, but in both, the same rule applies as
to the full notice of time which the law requires to be given for
the sale.
"In deciding upon tax land titles great strictness has always
been observed. The collector's proceedings are closely scanned. The
purchaser is bound to inquire whether he has done so or not. He
buys at his peril, and cannot sustain his title without showing the
authority of the collector and the regularity of his
proceedings."
This Court said in
Williams v.
Peyton, 4 Wheat. 77, that the authority given to a
collector to sell land for the nonpayment of the direct tax, "is a
naked power not coupled with an interest." In all such cases the
law requires that every prerequisite to the exercise of that power
must precede its exercise, that the agent must pursue the power or
his act will not be sustained by it. Again, in
Ronkendorff's
Case, 4 Pet. 349, this Court repeated that in an
ex parte proceeding, as a sale of lands for taxes, under a
special authority, great strictness is required. An individual
cannot be divested of his property against his consent, until every
substantial requisite of the law has been complied with. The proof
of the regularity of the collector's proceedings devolves upon the
person who claims under the collector's sale. At an earlier day,
the Court decided, in
Stead's Executors v.
Course, 4 Cranch 403: a collector selling lands for
taxes, must act in conformity with the law from which his power is
derived; and the purchaser is bound to inquire whether he has so
acted. It is incumbent upon the vendee to prove the authority to
sell.
See also McClung v.
Ross, 5 Wheat. 116;
Thatcher
v. Powell, 6 Wheat. 119. The decisions made by this
Court are full as to the circumstances under which tax titles may
be set aside. We recommend also the perusal of the case of
Lyon
v. Burt, in 11 Ala, cited by the counsel for the defendant in
error; and to all of the cases cited in the opinion of Chief
Justice Collier. It is not necessary for us to extend this opinion
farther in citing cases upon tax sales. So far as we know, the law
upon the subject is the same throughout the United States, and
where difference exist they have occurred from a different
phraseology in statutes, and not from any discordance in the views
of judges in respect to the common law to be applied in tax
sales.
See 8 U. S. 4 Cranch
403;
13 U. S. 9 Cranch
64; 1 Scam. 335; 1 Bibb, 295;
Page 57 U. S. 619
5 Mass. 403; 4 Dec. & Bal. 363; 3 Ohio 232; 2 Ohio 378; 3
Yeates 284; 2 Yeates 100; 13 Sergeant & Rawle 208; 4 Dec. &
Bal. 386;
18 U. S. 5 Wheat.
116;
19 U. S. 6 Wheat.
119; 1 Yeates 300; 3 Monroe 271; 1 Tyler 295; 14 Mass. 177;
21 U. S. 8 Wheat.
681; 15 Mass. 144; Greenleaf 339; Taylor's North Carolina 480; 3
Hawks 283; 1 Gilm. 26; 10 Wend. 346; 18 Johns. 441; 5 Ala. 433. I
have not the reports of the Supreme Court of Georgia at hand to
cite from them any cases of tax sales, if any have been decided by
it, but I know that the decisions of the courts in that state are
the same as those stated in this opinion and in the cases
cited.
We affirm the judgment of the circuit court.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Columbia, holden in and for the County of Washington, 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 affirmed, with
costs.
