1. Where lands have been sold for an unpaid direct tax, the tax
sale certificate is, under the Act of Feb. 6, 1833, 12 Stat. 640,
prima facie evidence not only of a regular sale, but of
all the antecedent facts which are essential to its validity and to
that of the purchaser's title. It can only be affected by
establishing that the lands were not subject to the tax, or that it
had been paid previously to the sale, or that they had been
redeemed according to the provisions of the act.
2. The ruling in
Cooley v.
O'Connor, 12 Wall. 391, that the act of Congress
contemplates such a certificate where the United States is the
purchaser, reaffirmed.
3. The Act of June 7, 1862, 12 Stat. 422, imposing a penalty for
default of voluntary payment of the direct tax upon lands, is not
unconstitutional. It reserved to the owner of them the right to pay
the tax within a specified time, and take a certificate of payment
by virtue whereof the lands would be discharged. On his failing to
do so, the penalty attached.
This is an action of trespass
quare clausum fregit
brought by William J. de Treville against Robert Smalls to try the
title to a certain lot of ground in the town of Beaufort, S.C.
Page 98 U. S. 518
The plaintiff having made out a
prima facie case, the
defendant offered in evidence the following paper:
"
UNITED STATES OF AMERICA"
"
Tax-sale Certificate No. 238"
"This is to certify that at a sale of lands for unpaid taxes,
under and by virtue of an act entitled 'An Act for the collection
of direct taxes in insurrectionary districts within the United
States, and for other purposes,' held, pursuant to notice, at
Beaufort, in District of Beaufort, in the State of South Carolina,
on the thirteenth day of March, A.D. 1863, the tract or parcel of
land hereinafter described, situate in the Town of Beaufort and
State aforesaid, and described as follows, to-wit:"
"'Lot B, in block 23, according to the commissioners' plat,' was
sold and struck off to the United States for the sum of fifteen
dollars and _____ cents, being the highest bidder, and that being
the highest sum bidden for the same, the receipt of which said sum
in full is hereby acknowledged and confessed."
"Given under our hands at Beaufort this second day of April,
A.D. 1863."
"WILLIAM E. WORDING"
"WM. HENRY BRISBANE"
"
Commissioners"
To the introduction of which the plaintiff objected, on the
ground:
First, it is not in law a certificate, in this, that it
does not, upon its face, show that those proceedings have been
taken by the said commissioners prior to the alleged sale, which
are essential to the regularity and validity thereof, and of which
the act of Congress makes a purchaser's certificate prima facie
evidence.
Second, it is not a proper and legal certificate under
the act of Congress, because on its face it shows that the
commissioners have not sold the plaintiff's lot of land according
to the enumeration of said lot required by the act.
Third, Sec. 13 of the Act of June 7, 1862, which, in
case of the concealment or the loss of the records of assessments
and valuation of the respective lots of land to be assessed,
authorizes the commissioners to value and assess the same in
their
Page 98 U. S. 519
own judgment, does not include the right to make a new and
different enumeration and description of such lots.
Fourth, said paper was not issued to any person, at
said sale, bidding "the sum of the taxes, penalty, and costs, and
ten percent per annum interest on said tax," pursuant to the notice
required by the act, nor to any person bidding "a larger sum," who,
upon paying the purchase money in gold and silver coin, or in the
Treasury notes of the United States, or in certificates of
indebtedness against the United States, "became entitled" under the
act "to receive from the commissioners their certificate of sale,"
and said paper on its face purports not to have been issued by the
commissioners to any "purchaser or purchasers," at a sale made
under the seventh section of the act, and is not a purchaser's
certificate of sale thereunder, but a mere memorandum that the land
was struck off to the United States, and as such memorandum is not
made evidence by the act, it is not competent evidence in law of
the facts which it recites.
The court overruled the objections and admitted the certificate,
to which ruling the plaintiff excepted.
The plaintiff, in reply to the evidence of the defendant,
offered evidence to prove that the commissioners did not apportion
and charge the said tax upon the said lot of ground as the same was
enumerated and valued under the last assessment and valuation
thereof made under the authority of the State of South Carolina
previous to the first day of January, 1861, but did apportion and
charge the said tax upon a lot enumerated and designated as lot B,
in block 23. Upon inquiry by the court, the plaintiff said that he
did not expect to prove that the records of assessment and
valuation of the lot made under the authority of the state actually
came within the possession of the board of commissioners previous
to the making of their valuation and assessment as aforesaid.
To the introduction of this evidence the defendant objected, his
objection was sustained, and the plaintiff excepted.
The plaintiff then offered evidence to prove that in the
advertisement and notice of the sale of said lot the same was not
described as it was enumerated in the last valuation and assessment
thereof made under the authority of the State previous to the first
day of January, 1861, and that in said advertisement
Page 98 U. S. 520
and notice the said lot was not described as the lot of said
owner, nor by its situation and boundaries, nor as enumerated on
the old plat of the town of Beaufort, nor by giving the streets and
numbers thereon by which said lots were known and recognized, but
by the enumeration and designation thereof as lot B, in block
23.
The court, on the objection of the defendant, excluded the
evidence, and the plaintiff excepted.
The plaintiff then offered in evidence the following statement
of W. E. Wording, one of the commissioners, to-wit:
"That the sales under act of Congress, 1862, for nonpayment of
taxes were advertised by the commissioner to be made at Beaufort.
On the Saturday preceding the sale, General Hunter, commanding the
military district in which the lands advertised were situated,
issued an order forbidding the sale. The commissioners,
notwithstanding the order, proceeded to sell, and on the day fixed
by the advertisement, and at the hour fixed therein, struck off one
lot. They then adjourned the sales from day to day, meanwhile
reporting the matter to General Hunter, who finally consented not
to interfere with the sale, and to revoke his order, but who did
not formally revoke it; and under these circumstances the sales
actually took place some time in March following -- about the 13th
of March -- and after the first day of sale."
He also offered to prove that during that period Beaufort County
was under martial law.
To the introduction of which evidence the defendant objected,
and his objection was sustained by the court, and the plaintiff
thereupon excepted.
The testimony on both sides having been closed, the plaintiff
requested the court to instruct the jury
"that the act of Congress approved 7th June, 1862, under which
the defendant claims his title, is in conflict with the fourth
clause, ninth section, first article, of the Constitution of the
United States, in that the amount of the direct tax theretofore
apportioned to the State of South Carolina is increased by the
addition thereto of a penalty of fifty percent, and thus is not in
proportion to the census or enumeration directed to be taken in the
third section of the same article, whereby all direct taxes are to
be
Page 98 U. S. 521
apportioned among the several states."
But the court declined so to charge, whereupon the plaintiff
excepted.
Judgment was rendered against the plaintiff, who thereupon sued
out this writ, and assigns for error the rulings of the court
below.
MR. JUSTICE STRONG delivered the opinion of the Court.
This case presents for our consideration the several acts of
Congress of 1861, 1862, and 1863, which provided for the levy and
collection of a direct tax, and the contest below was whether,
under those acts, the defendant had obtained a valid title to the
land in controversy. In support of his possession, he gave in
evidence at the trial the tax sale certificate, to the reception of
which exception was taken, for several reasons, most of which are
now urged in support of the assignments of error. It is said that
the certificate is not evidence of title in the defendant, because
it does not on its face show that those proceedings had been taken
by the commissioners prior to the alleged sale, which were
essential to the regularity and validity of the sale under the acts
of June 7, 1862, and Feb. 6, 1863. This objection entirely
overlooks the provisions of those acts of Congress. The certificate
which by the act of 1863 the board of tax commissioners was
required to give to purchasers was simply a certificate of sale.
The law did not require it should set forth that a tax had been
assessed upon the property; that the tax was unpaid; that the sale
had been advertised for a specified time or in a particular manner;
nor that it should recite any of the facts which were necessary
antecedents to any sale. It made the certificate of sale
equipollent with a deed, and cast upon the former owners of the
land the burden of showing that the certificate or deed was made
without authority. The numerous decisions cited by the plaintiff in
error to support his objection are quite inapplicable to the case.
No doubt it has been decided that statutes which make a tax sale
deed
prima facie evidence of the
regularity of
the sale, do not relieve a purchaser from the burden of showing
that the proceedings
Page 98 U. S. 522
anterior and necessary to the power to make the sale actually
took place. Such a provision has been held to relate only to the
conduct of the sale itself. But the act of 1863 declares that the
commissioners' certificate shall be
prima facie evidence
not merely of the
regularity of the sale, but also of its
validity and of
the title of the purchaser, and
it enacts that it shall 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 previously to the sale, or that the property had been
redeemed. How can a deed be
prima facie evidence of the
validity of a sale, unless it be such evidence of the
transmission of the title of the property? Is any sale
valid which does not pass title to the subject of the
sale? It may be regular in form and in the mode of its conduct, but
it cannot be
valid, unless authorized by law. Now the act
of Congress makes a certificate of sale by the commissioners
evidence that the title acquired by the purchaser under the sale
was a valid one, assailable only by proof of one or the other of
three things. It is not the certificate of an assessment or of an
advertisement of a sale, followed by an actual sale, to which such
an effect is given, but a certificate of sale alone. We are not at
liberty to interpolate in the statutes requisites for the
certificate which the statute does not demand.
The second objection to the reception of the tax certificate is
that it was not authorized by the statutes, inasmuch as it
certified a sale to the United States. It is insisted that the
effect of
prima facie evidence is given only to
certificates of sale made to the highest bidder, when such bidder
was some person other than the United States, and that no authority
was given to the board of commissioners to certify a sale when the
government was the highest bidder, and when the property was
stricken off to it. To this we cannot assent. The plain object of
the statutory provision was to give confidence to purchasers, and
thereby to enable the government to obtain the taxes due to it. For
these purposes it was quite as important that the government should
have evidence of its title, if it purchased, as it was that any
other purchaser should have such evidence. Taxes, not lands, were
what the government required. If the United States became the
purchaser at the commissioners' sale,
Page 98 U. S. 523
it was only to obtain the taxes by a resale, and such a resale,
resting as it must have done upon the original sale made by the
commissioners, needed the encouragement and support of a
commissioners' certificate equally with a purchase by any bidder.
It is not, therefore, to be admitted that the statute intended to
put the United States in any worse condition than that occupied by
any other successful bidder. The argument that it is only that
highest bidder who shall, upon paying the purchase money (and not
the United States, who of course do not pay so much as is claimed
for taxes), be entitled to the certificate, is plausible, but we
think it unsound. The words, "who shall, upon paying the purchase
money," &c., be entitled to this certificate, are not
descriptive of the highest bidder entitled, but declaratory of the
duty of every purchaser. It is, however, unnecessary to dwell
longer on this part of the case. In
Cooley v.
O'Connor, 12 Wall. 391, we held that the act of
Congress did contemplate a certificate of sale in cases where the
United States becomes the purchaser, as fully as where the purchase
is made by another. In that case, the point now made was distinctly
presented, and such was our judgment. We adhere to the opinion we
then expressed.
The other reasons urged in support of the objection to the
admission of the tax certificate of sale may be considered in
connection with the first exception to the rejection of evidence.
In substance, they are that the certificate was not legal because
on its face it shows the commissioners did not sell the plaintiff's
lot according to the enumeration thereof required by the acts of
Congress, and to show that such was the fact, the plaintiff offered
evidence which was rejected by the court. What was sold was lot B,
"according to the commissioners' plat." Now, if it be assumed, as
it must be, in view of the evidence offered, that the enumeration
and valuation of lot B was not in accordance with the last
assessment and valuation made under authority of the state previous
to Jan. 1, 1862, we do not perceive that it affects the validity of
the title acquired by the purchaser at the sale. It was foreseen by
Congress that the state records of assessments and valuation of the
lots of land in insurrectionary districts might be destroyed,
concealed, or lost, so as not to come into the possession of the
board of
Page 98 U. S. 524
commissioners, whose duty it was to enforce the collection of
the tax, and therefore it was enacted by the thirteenth section of
the act of 1862 that they should be authorized to value and assess
the same upon such evidence as might appear before them, and it was
declared that
"no mistake in the valuation of the same, or in the amount of
tax thereon, should in any manner whatever affect the validity of
the sale of the same, or of any of the proceedings preliminary
thereto."
The provisions respecting the mode of valuation were only
directory. But if they were more, so far as relates to the
admissibility of the certificate of sale, the requisition of the
first section of the act was quite immaterial. That certificate was
made
prima facie evidence of the regularity and validity
of the sale and of the title of the purchaser irrespective of any
recitals it might contain, or of any evidence which might
afterwards be adduced to rebut the
prima facies. It was
presumptive evidence of all antecedent facts essential to its
validity, and hence admissible as such. The only question, then, is
whether the evidence offered tended to rebut this presumption.
Assuming the evidence would have proved that the commissioners
did not apportion the tax upon the lot as the same had been
enumerated and valued by the state in the last assessment prior to
Jan. 1, 1862, their action was at most a mere irregularity, and the
evidence by itself did not prove that. The act authorized the board
to assess and value lots of ground according to their own judgment,
when the state records of valuation and assessments were destroyed,
concealed, or lost, so as not to come into their possession. It is
a fair presumption that they discharged their duty according to
law. The plaintiff did not offer to show, and disclaimed any
intention to show, that the state records of assessment and
valuation came into the possession of the commissioners previous to
their making the valuation and assessment; and in view of the
history of the times, to which we cannot close our eyes, it was a
reasonable presumption which the jury ought to have accepted, that
the state assessments and valuations were withheld or concealed.
They were, of course, in the hands of the insurrectionary state
government, and hence inaccessible to the commissioners. The
evidence offered had no tendency to show the contrary. As we
Page 98 U. S. 525
have seen, the act of Congress declared that no mistake in the
valuation or in the amount of the taxes would in any manner affect
the validity of the sale, or of any of the proceedings preliminary
thereto. Besides, all possible attack upon the
prima
facies of the certificate was limited by the express
provisions of the act, which enacted, as before stated, that it
should 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 sale, or that
the property had been redeemed. This left to the owner of lands
subject to the tax every substantial right. It was his duty to pay
the tax when it was due. His land was charged with it by the act of
Congress, not by the commissioners; and the proceeding ending in a
sale was simply a mode of compelling the discharge of his duty. All
his substantial rights were assured to him by the permission to
show that he owed no tax, that his land was not taxable, that he
had paid what was due, or that he had redeemed his land after sale.
He was thus permitted to assert everything of substance -- every
thing except mere irregularities.
We do not feel at liberty to disregard the plain intention of
the acts of Congress. We are not unmindful of the numerous
decisions of state courts which have construed away the plain
meaning of statutes providing for the collection of taxes,
disregarding the spirit and often the letter of the enactments,
until of late years the astuteness of judicial refinement had
rendered almost inoperative all legislative provisions for the sale
of land for taxes. The consequence was that bidders at tax sales,
if obtained at all, were mere speculators. The chances were greatly
against their obtaining a title. The least error in the conduct of
the sale, or in the proceedings preliminary thereto, was held to
vitiate it, though the tax was clearly due and unpaid. Mr.
Blackwell, in his Treatise on Tax Titles, says (p. 71), "that out
of a thousand cases in court [of tax sales], not twenty have been
sustained." To meet this tendency of judicial refinement very many
states have of late adopted very rigid legislation. The acts of
Congress we are considering must have had it in view. Hence the
stringent provisions they contain. They declare in effect that the
certificate of
Page 98 U. S. 526
the commissioners' sale shall be evidence of compliance with the
preliminary requisites of the sale, and that this evidence shall be
rebutted only by proof of one or the other of three specified
things. There is no possible excuse for not enforcing such statutes
according to their letter and spirit. In
Gwynne v.
Neiswanger, 18 Ohio 400, it appeared that the statute of the
state prescribed certain preliminaries to a sale of land for taxes,
and directed a deed to be made to the purchaser, which should be
received in all courts of the state as good evidence of title,
adding, "nor shall the title conveyed by said deed to the purchaser
or purchasers, his heirs, or their heirs, assignee or assignees, be
invalidated or affected by any error previously made in listing,
taxing, selling, or conveying said land." The court held that even
if there were irregularities in the proceedings, they would not
justify declaring invalid a deed which the law under which it was
made enacted should not be invalidated for any error in the
listing, selling, or conveying.
In
Allen v. Armstrong, 16 Ia. 508, we find a
construction of another state statute. It enacted that a county
treasurer's deed for land sold by him for taxes should be
prima
facie evidence 1st that the property conveyed was subject to
taxation; 2d, that the taxes were not paid; 3d, that the property
conveyed was not redeemed; and should be conclusive evidence of the
following facts: 1st, that the property had been taxed and assessed
as required by law; 2d, that the taxes were levied according to
law; 3d, that the property was advertised for sale in the manner
and for the length of time required by law; 4th, that the property
was sold as stated in the deed; 5th, that the grantee was the
purchaser; 6th, that the sale was conducted as required by law, and
7th, that all the prerequisites of the law were complied with by
all the officers, from the listing and valuation of the property up
to the execution of the deed, and that all things whatsoever
required by law to make a good and valid sale, and to vest the
title in the purchaser, were done except in regard to the three
points first above named, wherein the deed should be
prima
facie evidence only. This, it will be noticed, was
substantially the same as the United states statute, and the court
ruled that irregularities preceding
Page 98 U. S. 527
the sale were inoperative to defeat it. The case is in many
particulars instructive.
See also Tharp v. Hart, 2 Sneed
(Tenn.) 569.
In regard to the assignment of the plaintiff, that the court
erred in refusing to admit evidence of the order of General Hunter
and its revocation, as well as of the fact that Beaufort County was
under martial law when the sale was made, it is sufficient to say
that we cannot perceive its possible legitimate bearing upon any
question really involved in the case, and the assignment has not
been seriously pressed.
Nor was there error of which the plaintiff can take advantage in
refusing evidence to prove that the advertisement and notice of the
sale did not describe the property sold as it was enumerated in the
last preceding valuation. What we have heretofore said is a
sufficient answer to this objection.
One other assignment only remains. It is that the acts of
Congress were unconstitutional because the amount of the direct
taxes apportioned to the state of South Carolina was increased by
the addition thereto of a penalty of fifty percent, and therefore
was not in proportion to the census or enumeration directed to be
taken by the second section of the first article of the
Constitution.
The assignment rests upon a mistaken construction of the acts of
Congress. It is true that direct taxes must be apportioned among
the several states according to the population. The Acts of Aug. 5,
1861, June 7, 1862, and Feb. 6, 1863, did so apportion the tax. The
fifty percent penalty was no part of it. The act of Congress of
1861, which levied the tax, provided for no penalty, except for
failure to pay it when it was due, and the penalty charged by the
acts of 1862 and 1863 was also for default of voluntary payment in
due time. A careful reading of the acts makes this very plain.
Throughout, a distinction is made between the tax and the added
penalty. It is recognized in the first section of the act of 1862,
in the second, and in the third, as well as elsewhere. By the third
section the owner of the lots or parcels of land was allowed to pay
the tax charged thereon (
not the tax and penalty) and take
a certificate of payment by virtue whereof the
Page 98 U. S. 528
lands would be discharged. It cannot, therefore, be maintained
that the tax was in conflict with the Constitution.
We have thus considered all the questions presented by the
record, and we discover no error.
Judgment affirmed.
MR. JUSTICE FIELD dissented.
