Where a deed was objected to in the circuit court on the ground
of fraud, but no specific grounds of objection were made, this
Court cannot inquire into the correctness or incorrectness of the
objection.
Page 62 U. S. 332
By the laws of Arkansas, and decisions of its courts, a
sheriff's deed of land sold for the nonpayment of taxes is made
evidence of the regularity and legality of the sale, and the burden
of proof of irregularity is cast upon the assailant of the tax
title.
The cases upon this point examined.
The law also allows the purchaser of a tax title to file a
petition on the chancery side of the state court, whose judgment,
or decree, confirming the sale, shall operate as a bar against all
persons who may claim the land in consequence of informality or
illegality in the proceedings which led to the sale.
A record of such a decree, when produced in the circuit court,
was conclusive evidence of the title of the purchaser at the
sheriff's sale.
The facts of the case are stated in the opinion of the
court.
Page 62 U. S. 333
MR. JUSTICE DANIEL delivered the opinion of the Court.
This was an action of ejectment instituted by the plaintiff, a
citizen of Indiana, and as sole heiress of John Crow, deceased,
against James Lawson, a citizen of the State of Arkansas, for the
recovery of a tract of land situated in the state last mentioned,
described in the declaration, and averred to be of greater value
than two thousand dollars. Pending the proceedings in the circuit
court, Lawson, the original defendant, having died, the cause was
revived against the defendants upon the record as his heirs, and
upon a trial of the cause, on the 16th day of April, 1856, the jury
rendered a verdict for the plaintiff, and on that verdict the court
gave a judgment in favor of the plaintiff, with costs of suit. At a
subsequent day of the term, the court, on motion of the defendants,
awarded a new trial in their behalf, and on the 22d day of April,
1857, this cause being again heard, a verdict was rendered in favor
of the defendants below, the defendants in error, and upon this
verdict the court pronounced judgment in behalf of the defendants,
inclusive of all the costs of suit.
In this action, the defendant pleaded six several pleas --
first, the general issue not guilty, on which there was a joinder,
and five other pleas, all of which were either stricken out or
overruled
Page 62 U. S. 334
upon demurrer except the fifth, to the following effect: that
the defendant was a purchaser of the tract of land in the
declaration mentioned, at a sale made by the sheriff and collector
of the revenue of the county in which the said land was and is
situated for the nonpayment of the taxes assessed and due thereon,
and that he has held the peaceable, adverse, and uninterrupted
possession of the said land under and by virtue of his said
purchase for more than five years next before the commencement of
this suit. On this fifth plea also issue was joined.
Upon the trial in the court below, the plaintiff gave in
evidence a patent from the United States, bearing date on the 1st
day of February, 1821, to the plaintiff and others, heirs of John
Crow, deceased, for the land in contest, which patent was read
without objection, the titles of both plaintiff and defendants
being deducible from that act of the government. The plaintiff
further proved that she was the only surviving child and the sole
heir of John Crow, and was the widow of James Thomas, who died in
the year 1840, and that from the year 1839 she had resided in the
State of Indiana and was a citizen of that state. The plaintiff
further proved the possession of Lawson, the ancestor of the
defendants, of the land at the time of the institution of this
suit, and his refusal to surrender possession to the plaintiff. And
here the plaintiff rested her case upon the evidence.
The defendants, in support of their title and right of
possession, offered in evidence a deed, bearing date on the 2d day
of November, 1846, from W. B. Borden, at that date sheriff, and as
such
ex officio assessor and collector of the taxes for
the County of Pulaski, in which county the lands in contest are
situated, conveying those lands to the ancestor of the
defendants.
In this deed it is recited that in the year 1824, in conformity
with the laws in force in the then Territory of Arkansas, the lands
in contest, with several other parts of sections, all situated in
the County of Pulaski, were by the sheriff, as
ex officio
assessor and collector for the county, assessed for the taxes
payable thereon for that year. That in conformity with the law, and
within the time thereby prescribed, the sheriff, as
ex
Page 62 U. S. 335
officio assessor and collector, filed in the office of
clerk of the county court a list of lands and town lots owned and
assessed to persons then residents of said county, in which list
the lands in the said deed were embraced; that a copy of the list
so made and filed was by the said officer put up at the door of the
courthouse of said county, and published in the Arkansas State
Gazette, a newspaper printed in the territory, for four weeks
successively before the day of sale, as prescribed by law. That the
sheriff as
ex officio assessor and collector, in like
conformity with law, on the 1st day of November, 1824, exposed and
offered for sale, at the courthouse of the said county, at public
auction, the several parcels or parts of sections of land above
mentioned, for the payment of the taxes, and the penalty payable
upon the amount of those taxes. That Thomas Newton became the
purchaser of the several parcels of land, and transferred his
certificate of his purchase of those lands to James Lawson. That
the sheriff, as
ex officio assessor and collector, made
out and delivered to the purchaser a certificate of purchase
containing the requisite description of the taxes and penalty on
the lands listed for taxation, and that the amount was paid by
Newton, the purchaser. That one year having elapsed since the sale
by the sheriff, and that Newton, by James Lawson, having presented
to Borden, the sheriff and
ex officio assessor and
collector, the certificate of purchase, and requested a deed to
Lawson from the sheriff, the deed from Borden, as sheriff &c.,
was made to Lawson.
The defendants next offered in evidence, under the certificate
of the clerk of the Circuit Court of Pulaski County, a copy from
the records of that court of the acknowledgment in open court, on
the 13th of July, 1849, by Borden, as late Sheriff and Collector of
Pulaski County, of the deed executed by him to Lawson for the
several parcels of land therein described, including the land in
controversy, as having been sold by the predecessor of said Borden
as sheriff and collector, under and by virtue of a levy and
distress made upon such tracts of land to secure the payment of the
state and county taxes, and the penalty and costs and charges due
for the years 1824 and 1825.
Page 62 U. S. 336
The defendants also proved that Thomas Newton, by a deed bearing
date on the 21st of May, 1846, assigned and conveyed to James
Lawson, in his lifetime, all the right, title, interest, and claim,
in and to the lands purchased by Newton of the sheriff in the year
1824 and embraced in the deed from Borden, sheriff &c., to
Lawson.
The defendants then offered the record, duly certified, of the
proceedings on the chancery side of the Circuit Court of the County
of Pulaski, on the 20th day of February, 1850, upon a petition in
the name of James Lawson in his lifetime, setting forth the several
facts and transactions recited in the deed from Borden to Lawson
and also the execution and recording of that deed, and further
setting forth that he, Lawson, after the time allowed by law for
the redemption of said lands, and more than six months before the
commencement of the then present term of this Court, caused a
notice stating the authority under which said sheriff's sales took
place and also containing the same description of the lands
purchased as that given in said sheriff's deed and declaring the
price at which said tracts were respectively bargained, the nature
of the title by which the same are held, and calling on all persons
who could set up any right to any part of said lands, in
consequence of any irregularity or illegality connected with said
sales, to show cause at the first term of the circuit court of said
county, six months after the publication of said notice, being the
present term of the court, why the respective sales so made should
not be confirmed, pursuant to a petition to be filed in this Court
for that purpose, to be inserted and published in the Arkansas
state Democrat, a newspaper published in Little Rock, for six weeks
in succession, the last insertion to be more than six months before
the commencement of the present term of this Court, as by affidavit
of the publisher, setting forth a copy of such notice, with the
date of the first publication thereof, and the number of insertions
sworn to and subscribed before a justice of the peace of said
county, and properly authenticated and filed with said petition,
fully appears to the court, and concluding with the decree of that
court in the following words:
Page 62 U. S. 337
"Whereupon all and singular the allegations made in said
petition being by the production of said deeds and due proofs of
the publication of said notice, proven and established to the
satisfaction of the Court here, and no cause having been shown
against the prayer of said petition by any person whomsoever, but
the said application being and remaining wholly undefended:"
"It is therefore considered and adjudged and decreed by the
court here that said sheriff's sales, and each of them, be, and the
same are hereby, in all things confirmed, according to the statute
in such case made and provided, and further that this decree shall
operate as a complete bar against any and all persons hereafter
claiming said lands, or any part thereof, in consequence of any
informality or illegality in any of the proceedings aforesaid, and
that the title of each of said tracts of land be decreed and
considered as hereby confirmed and completed in said James Lawson
and his heirs and assigns forever, saving, however, to infants,
persons of unsound mind, imprisoned, beyond the seas, or out of the
jurisdiction of the United States, the right to appear and contest
the title to said lands, within one year after their disabilities
may be removed. And it is ordered that the petitioner pay the costs
thereof."
To the admission of this record the plaintiff in the circuit
court objected, but the court permitted it to be read in evidence.
The deed from Borden, sheriff, to Lawson, of the 2d of November,
1846, was also objected to by the same party, but was allowed to be
given in evidence to the jury.
Several prayers for instruction were presented, both by the
plaintiff and the defendants, and decisions thereon were made by
the court. We shall consider the following only, as comprising the
real merits of this controversy:
The objections urged against the admission of the deed from the
sheriff to Lawson were:
1st. That the deed and the certificate of its admission to
record bore upon their face unmistakable evidence of fraud. What
those clear marks of fraud upon the face of those documents were is
not stated with sufficient particularity in order to a correct
comprehension of their character. The court to
Page 62 U. S. 338
whom this objection was presented must have decided upon an
inspection of the papers, probably correctly, but whether correctly
or otherwise this Court cannot now inquire, in compliance with
assertions altogether vague, and pointing to no specific vice in
any one of those papers. This first objection, therefore, to the
admissibility of the deed is of no force.
But the deed from Borden was further objected to because, as it
was alleged:
Secondly. That there was no valid proof of the execution of such
paper as a deed.
Thirdly. There was no proof of the authority of the said William
B. Borden to execute such deed, or that he was, at the date of its
execution or acknowledgment, Collector of Taxes in and for said
County of Pulaski.
Fourthly. It was not accompanied by proof that the said tract of
land in controversy was either assessed, or taxed, or advertised,
or legally sold, in the year 1824, for taxes, or that the said
Henry Armstrong, as such alleged sheriff, assessor, and collector,
in the year 1824, had any authority to assess said tract of land
for taxation or to sell it for the nonpayment of such taxes.
Fifthly. That such paper, purporting to be such deed, was not
admissible in evidence until it should be first proved that all the
material steps required by law, preparatory to and in the
assessment and taxation of said tract of land, and in the
advertisement and sale thereof in the year 1824, and all previous
steps required by law prior to the execution of such deed, had been
complied with, either by record evidence or by evidence
in
pais.
These four objections are met and overcome, first by the
language of the statutes of Arkansas, and secondly by the
interpretation given of those statutes by the supreme court of that
state. By the law of Arkansas regulating conveyances,
vide
Digest of the laws of 1848, by English and Hempstead 268, sec. 26,
it is declared that
"Every deed or instrument of writing conveying or affecting real
estate, which shall be acknowledged or proved and certified as
prescribed by that act, may, together with the certificate of
acknowledgment, be
Page 62 U. S. 339
recorded by the recorder of the county where the land to be
conveyed or affected thereby shall be situate, and when so recorded
may be read in evidence in any court in this state without further
proof of execution."
Again, in the same Digest pp. 888, 889, sec. 112, title REVENUE,
it is declared, with respect to sales and conveyances made by the
sheriff and collector for the nonpayment of taxes, that
"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 for
the sale of such lands."
Again, p. 889, sec. 114, it is provided,
"That if any collector shall die or be removed from office or
his term of service expire after selling any land for taxes and
before making and executing a deed for the same, the collector then
in office shall make and execute a deed to the purchaser of such
lands, in the same manner, and with the like effect, as the officer
making such sale would have done."
By another provision of the statute of Arkansas, a like power to
that previously mentioned as vested in the sheriff with respect to
delinquent lands is conferred upon the auditor of public accounts,
and, in the exercise of that power by the latter officer, the
provisions of the statute, both as to the acts to be performed and
the consequences to ensue from those acts, are substantially and
almost literally identical with those relating to the proceedings
by the sheriff.
Thus, Dig., 893, sec. 141, it is enacted that
"The auditor shall execute under his hand and the seal of his
office and deliver to each person purchasing lands or lots at such
sale a deed or conveyance in which he shall describe the lands or
lots sold and the consideration for which the same were sold, and
shall convey to the purchaser all the right, title, interest, and
claim, of the state thereto,"
and by section 142,
"The deed so made shall vest in the grantee, his heirs or
assigns, a good and valid title, both in law and equity, and shall
be received in all the courts of this state as evidence of a good
and valid title in
Page 62 U. S. 340
such grantee, his heirs or assigns, and shall be evidence
that all things required by law to be done to make a good and
valid sale were done both by the collector and auditor."
In the interpretation of this provision
in pari
materia, the Supreme Court of Arkansas, in the case of
Merrick and Fenno v. Hutt, 15 Ark. 338, said:
"A more comprehensive provision could hardly be found, and it
might seem at first view to make the tax title derived from the
auditor valid against all objections. But that was not the design.
The evil to be remedied was that the entire burden of proof was
cast on the purchaser, to show that every requisite of the law had
been complied with, and the deed of the officer was not even
prima facie evidence of the facts therein stated. The
general and prevailing principle was that to divest the owner of
land by a sale for taxes, every preliminary step must be shown to
be in conformity with the statute; that it was a naked power, not
coupled with an interest, and every prerequisite to the exercise of
that power must precede it, and that the deed was not
prima
facie evidence that these prerequisites had been observed. The
intention and scope of the statute were to change this rule so far
as to cast the
onus probandi on the assailant of the tax
title, by making the deed evidence of the title of the purchaser,
subject to be overthrown by proof of noncompliance with the
substantial requisites of the law. Proof, then, that any of the
substantial requisites of the law had been disregarded, or that the
taxes have been paid, no matter by whom, would be sufficient to
destroy the tax title, whether emanating from the auditor or the
collector. The deed of the auditor is not required to contain
recitals. All that is necessary is to describe the property sold,
and the consideration, and to convey to the purchaser all the
right, title, interest, and estate of the former owner, as well as
all the right, title, interest, and claim of the state to the
land."
The same exposition of the statutes of Arkansas, and of the
policy and necessity in which those statutes have had their origin,
is given in the case of
Pillow v. Roberts in this Court
reported in
54 U. S. 13 How.
472. The deed, then, from the sheriff and collector Borden to
Lawson was clearly
prima facie
Page 62 U. S. 341
evidence of the assessment, taxation, and forfeiture of the
land, of the regularity of every proceeding previously to the sale
of the land forfeited, of the competency of the officer making the
sale and conveyance, of the legal validity of the sale, and cast
upon the assailant of any of these prerequisites the burden of
showing the absence or defectiveness of any of them. And without
such a showing, that which was
prima facie proof will be
taken as conclusive.
But every question with respect to the assessment of the lands
in controversy, or the nonpayment of the taxes, or the regularity
of the proceedings of the sheriff and collector, inclusive of the
execution and recording of the deed from that officer, seems to
have been concluded by the petition of the purchaser on the
chancery side of the Circuit Court of Pulaski County, and the
decree of confirmation pronounced upon that petition as herein
already mentioned.
The provisions of the law by which this petition by the
purchaser from the sheriff or auditor of lands sold for the
nonpayment of taxes, and by which the proceedings upon such a
petition, and the effect of a decree of confirmation pronounced
thereupon, are contained in the Digest of the laws, 966, 967, under
the head of Tax Titles, sections from one to six, inclusive. By the
section last mentioned (6th), it is declared that the judgment or
decree confirming said sale shall operate as a complete bar against
any and all persons who may thereafter claim said land in
consequence of informality or illegality in the proceedings, and
the title to said land shall be considered as confirmed and
complete in the purchaser thereof, his heirs and assigns, forever.
The decree of the Circuit Court of the County of Pulaski, before
referred to, expressly sets forth a compliance with every requisite
prescribed in the aforegoing six sections of the statute, including
the notice by publication calling on all persons to show any
objection to the purchase from the officer, in consequence of
informality, irregularity, or illegality connected with the sale of
the lands; the failure of any contestant to appear in obedience to
such notice, and the expiration of the time limited in the saving
reserved in behalf of those of whom exception is made in the
statute.
Page 62 U. S. 342
Upon an inspection of the proceedings in the court of Pulaski,
the court below was of the opinion that it constituted a valid
title in the defendant against the whole world, and charged the
jury that
"it divested the title of the plaintiff, and that since the
rendition of said decree she had no title to the said tract of land
unless she has, since the date of the said decree, obtained title
thereto from or under the said James Lawson, or unless such decree
was obtained by fraud."
Of the effect of a decree of confirmation like the one in this
case there exists no doubt under the construction of the statutes
of Arkansas by the supreme court of that state, as declared in the
case of
Evans & Black v. Percifull, 5 Ark. 425. The
court in that case held the decree to be conclusive, although they
thought it erroneous; yet inasmuch as it had not been reversed for
error, they ruled that it could not be collaterally impeached; and
they say, in express terms, that had there been no deed from the
officer,
in fact, the decree would have been conclusive of the
sufficiency of the evidence to warrant it.
In the case of
Parker v.
Overman, 18 How. 140, this Court, commenting upon
the statute of Arkansas, has said:
"In case no one appears to contest the regularity of the sale,
the court is required to confirm it on finding certain facts to
exist; but if opposition is made, and it should appear that the
sale was made contrary to law, it became the duty of the court to
annul it. The judgment or decree in favor of the grantee in the
deed operates as a complete bar against any and all persons who may
thereafter claim such land in consequence of any informality or
illegality in the proceedings. The jurisdiction of the court over
the controversy is founded on the presence of the property, and
like a proceeding
in rem, it becomes conclusive against
the absent claimant as well as the present contestant."
This interpretation of the statutes of Arkansas is fully
coincident with that propounded by the cases of
Merrick &
Fenno v. Hutt and of
Evans & Black v. Percifull,
already cited, and sustains the correctness of the instructions of
the circuit court as to the effect of the decree of confirmation of
the Circuit Court of Pulaski County.
Page 62 U. S. 343
A question was raised in the circuit court as to the effect of
the five years' statutory limitation upon the rights of the parties
-- as, for instance, whether that statute would begin to run from
the date of the deed of the sheriff or from the period of the
recording of that deed, or whether it could operate at all upon a
constructive seizin effected by the sheriff's deed, or required, in
order to give it effect, an actual seizin by the purchaser from the
sheriff. This question we do not deem it necessary, or even
regular, in this case to discuss or determine. In the first place,
the rulings of the court below with regard to it were in favor of
the plaintiff in error, and therefore can constitute no wrong or
gravamen on his part. In the next place, we consider that question
embraced and concluded, or rather excluded, by the proceedings in
chancery against the property, and the confirmation of the title by
the decree.
The judgment of the circuit court is affirmed.