The official tax books of the Corporation of Washington, made up
by the register from the original returns or lists of the
assessors, laid before the Court of Appeals, he being empowered by
the ordinances of the corporation to correct the valuations made by
the assessors, are evidence, and it is not required that the
assessor's original lists shall be produced in evidence to prove
the assessment of the taxes on real estate in the City of
Washington.
In an
ex parte proceeding, as a sale of land for taxes
under a special authority, great strictness is required. To divest
an individual of his property against his consent, every
substantial requisite of the law must be complied with. No
presumption can be raised in behalf of a collector who sells real
estate for taxes to cure any radical defect in his proceedings, and
the proof of regularity devolves upon the person who claims under
the collector's sale.
Proof of the regular appointment of the assessors is not
necessary. They acted under the authority of the corporation, and
the highest evidence of this fact is the sanction given to their
returns.
The act of Congress under which the lot in the City of
Washington in controversy was sold required that public notice of
the time and place of sale of lots, the property of nonresidents,
should be given by advertising "once a week" in some newspaper in
the city for three months. Notice of the sale of the lot in
controversy was published for three months, but in the course of
that period, eleven days at one time, at another ten days, and at
another eight days transpired, in succeeding weeks between the
insertions of the advertisement in the newspapers. "A week" is a
definite period of time, commencing on Sunday and ending on
Saturday. The notice was published Monday, January 6, and was
omitted until Saturday, January 18, leaving an interval of eleven
days. Still the publication on Saturday was within the week
preceding the notice of the 6th, and this was sufficient. It would
be a most rigid construction of the act of Congress, justified
neither by its spirit nor its language, to say that this notice
must be published on any particular day of a week. If published
once a week for three months, the law is complied with and its
object effectuated.
No doubt can exist that a part of a lot may be sold for taxes,
where they have accrued on such part.
The lot on which the taxes were assessed belonged to two persons
as tenants in common. The assessment was made by a valuation of
each half of the lot. To make a sale of the interest of one tenant
in common for unpaid taxes valid, it need not extend to the
interest of both claimants; one having paid his tax, the interest
of the other may well be sold for the balance.
The advertisement purported to sell "half of lot No. 4, in
square No. 491," and the other half was advertised in the same
manner, as belonging to the other tenant in common. This was not a
sufficient advertisement, and a sale made under the same was
void.
It is not sufficient that in an advertisement of land for sale
for unpaid taxes, such
Page 29 U. S. 350
a description is given as would enable the person desirous of
purchasing to ascertain the situation of the property by inquiry,
nor if the purchaser at the sale had been informed of every fact
necessary to enable him to fix a value upon the property would the
sale be valid unless the same information had been communicated to
the public in the notice.
The tenth section of the act of Congress provides that real
property in Washington on which two or more years' taxes shall be
due and unpaid may be sold, &c. In this section a distinction
is made between a general and a special tax. Property may be sold
to pay the former as soon as two years' taxes shall be due, but to
pay the latter, property cannot be sold until the expiration of two
years after the second year's tax becomes due. The taxes for which
the property in controversy was sold became due, by the ordinance
of the corporation, on 1f January, 1821 and 1822. The special tax
for paving was charged against the lot in 1820, and became due on 1
January, 1821, but the ground on which it was assessed was not
liable to be sold for the tax until 1 January, 1823. The first
notice of the sale was given on 6 December, 1822, nearly a month
before the lot was liable to be sold for the special tax of 1820.
Held that the whole period should have elapsed which was
necessary to render the lot liable to be sold for the special tax
before the advertisement was published.
This was an ejectment brought by the defendant in error in the
circuit court for the recovery of an undivided moiety of a lot of
ground in the City of Washington, No. 4, in square No. 491.
The lessor of the plaintiff in the ejectment claimed to be
entitled to the lot of ground as tenant in common with the heirs at
law of Henry Toland, deceased, and on 10 March, 1823, the half of
the lot so held by the lessor of the plaintiff was set up and
exposed to public sale, as assessed to James N. Taylor, for taxes
due to the Corporation of Washington for the years 1820 and 1821,
amounting, in the whole, including the expenses of the sale, to the
sum of $47.91, and Henry T. Weightman became the purchaser of the
same. Mary Ronkendorff, the plaintiff in error, holds as lessee
under the purchase at the tax sale.
In the circuit, the jury returned a verdict for the plaintiff in
the ejectment, upon which judgment for his unexpired term in an
undivided moiety of the lot as tenant in common was rendered in his
favor under the instructions of the court, to which several
exceptions were taken.
Page 29 U. S. 351
The plaintiff in the circuit court made out his title under the
commissioners of the City of Washington by regular conveyances to
himself and Henry Toland deceased, and it was agreed that the
plaintiff's lessee and Toland's heirs were under the same seized in
fee as tenants in common of the premises before the sale of the
half lot for taxes.
The defendant proved the assessment of the taxes on the lot by
the production of the regular evidence, and that the taxes were
assessed and the assessments were entered in the tax books
according to the forms usually pursued and authorized under the
charter and ordinances of the Corporation of Washington.
In the tax book of 1820, the assessment of lot No. 4, in square
No. 491, appears arranged in columns in the established and
accustomed forms, in which are placed the name and residence of the
owner of the property; the number of the square; the number of the
lot; its contents in square feet; the rate of assessment; the
valuation; the valuation of the improvements; and the amount of the
tax. The lot in controversy was entered in the tax book of 1820
thus:
image:a
It was also proved on the part of the defendant in the ejectment
that the persons appointed to take the value of the property liable
to assessments for taxes in the City of Washington usually perform
the duty in October in each
Page 29 U. S. 352
year and make out annual lists of the same and of its assessed
value, which, after being laid before the board of appeal empowered
to correct the valuations, are returned to the register of the
corporation with the corrections, if any, in whose custody and
office the original books containing such lists and valuations are
preserved, and the register, by the authority of the corporation,
then proceeds to digest the tax books, year by year, in the form
described, and transfers into such tax books from the original
assessment books so returned by the assessors through the board of
appeal, the lists of the several species, descriptions, and parcels
of property on which such taxes are imposed and the assessed
valuation of the same, as corrected by the board of appeal,
extending in the proper column prepared for the purpose the amount
of the taxes imposed upon the same respectively, which tax books,
given in evidence by the defendant, were so made up and arranged by
the register in the years 1820 and 1821 respectively the general
taxes therein respectively assessed becoming due and payable
according to the laws of the corporation on the first day of
January of each year then next ensuing -- that is to say, the
general tax (exclusive of the special tax for paving) for the year
1820, on 1 January, 1821; and that for the year 1821 on 1 January,
1822.
The court, on the motion of the plaintiff, instructed the jury
that the tax books so given in evidence by the defendant were not
competent evidence to prove the assessments of the lot for the
years 1820 and 1821 unless the defendant first proved the regular
appointment and authority of the assessors whose books and returns
were used in making up and arranging the tax books as aforesaid,
and also produced the original books so returned by the assessors,
through the board of appeal, in each year respectively, to which
opinion and instruction of the court the defendant in the circuit
court excepted.
It was further proved on the part of the defendant that the
collector of the taxes imposed by the corporation in third and
fourth wards, who was authorized to advertise and sell all property
in those wards liable to be sold by taxes, on Monday,
Page 29 U. S. 353
6 December in the year 1822, the taxes on the lot in controversy
being unpaid, caused to be inserted in the national Intelligencer,
the following advertisement:
"Will be sold, at public sale, on Monday 10 March next, at 10
o'clock, A.M. at the city Hall, the following described property,
to satisfy the Corporation of Washington City for taxes due thereon
up to the year 1821 inclusive, with costs and charges, unless
previously paid to the subscriber, to-wit, [and amongst others are
the following]"
image:b
This advertisement was repeated, and republished, by the
direction of the collector, on the several days following:
Friday, December 6, 1822 -- Saturday, December 14, 1822 --
Monday, December 16, 1822 -- Tuesday, December 17, 1822 --
Wednesday, December 25, 1822 -- Saturday, January 4, 1823 --
Monday, January 6, 1823 -- Saturday, January 18, 1823 -- Tuesday,
January 21, 1823 -- Saturday, February 1, 1823 -- Tuesday, February
4, 1823 -- Thursday, February 6, 1823 -- Saturday, February 8, 1823
-- Tuesday, February 11, 1823 -- Wednesday, February 12, 1823 --
Thursday, February 13, 1823 -- Friday, February 14, 1823 --
Saturday, February 15, 1823 -- Monday, February 17, 1823 --
Tuesday, February 18, 1823 -- Wednesday, February 19, 1823 --
Saturday, March 4, 1823 -- Monday, March 3, 1823 -- Tuesday, March
4, 1823 -- Wednesday, March 5, 1823 -- Monday, March 10, 1823.
The tenth section of the Act of Congress of 15 May, 1820, "to
incorporate the inhabitants of the City of Washington, and to
repeal all other acts heretofore passed," requires that real estate
upon which two years' taxes are unpaid and in arrear shall be
advertised "once a week" for three months.
In pursuance of his authority and duty, and according to the
tenor of the advertisement, the collector, on 10
Page 29 U. S. 354
March, 1823, set up at public sale one-half of the lot No. 4, in
square No. 491, and the same having been purchased by Henry T.
Weightman, he paid the amount of the purchase money on the 11th of
March, 1823, to the collector, who thereupon executed and delivered
to him a certificate under his hand, and executed in the presence
of a witness; stating, that
"At a sale made by me, as collector of taxes for the Third and
Fourth Wards of the City of Washington, on 10 March, 1823, after
due notice given as required by the acts of the corporation of said
city, I set up and exposed to public sale half of lot No. 4, in
square No. 491, assessed to James N. Taylor, for taxes due the said
corporation on the same for the years 1820 and 1821, amounting in
the whole, including the expenses of sale, to the sum of $47.91,
when a certain Henry T. Weightman, being the highest bidder, became
the purchaser thereof, at and for the sum of $47.91, the receipt of
$47.91 is hereby acknowledged, subject however to redemption as
provided for by law."
The collector made a return of the sale in the following
form:
image:c
Mr. Weightman entered upon the half lot so sold to him, and was
possessed thereof more than two years after the day of sale; and
afterwards, on 5 October, 1826, received in due form a conveyance
in fee simple of the said half lot, which deed was duly recorded,
the plaintiff's lessor, James N. Taylor, or any person for him or
in his behalf, or any person whatever not having at any time paid
or in any manner tendered to Mr. Weightman, or deposited in the
hands of the mayor or other officer of the corporation the money
paid to the collector, or any part thereof.
The court, on the motion of the plaintiff, instructed the jury
that the advertisement of the property was defective and illegal in
the several instances and particulars following, to-wit:
Page 29 U. S. 355
1. That, being published and republished as aforesaid, on the
several days aforesaid, from 6 December, 1822 to 17 March, 1823,
both inclusive, was not an advertisement "once a week" for three
months within the meaning of the tenth section of the Act of
Congress passed on 15 May, 1820, "to incorporate the inhabitants of
the City of Washington, and to repeal all acts heretofore passed
for that purpose."
2. That the said corporation, or its collector of taxes acting
under its authority, was not competent to advertise and sell any
part of the said lot No. 4, in square No. 491, less than the entire
lot, for the taxes so assessed on the same and due to the said
corporation.
3. That the entire lot should have been assessed to the two
tenants in common, Taylor and Toland; and accordingly advertised
and sold, as assessed to them.
4. That the said advertisement did not sufficiently designate
what half of the said lot was charged with the said taxes, and was
to be sold for the same, and did not purport to be an advertisement
of an undivided moiety of the same for sale.
5. That the said corporation or its said collector had no power
or authority to advertise the said lot for sale till the last of
the two years' taxes, for which the same was advertised for sale,
had remained unpaid and in arrears for two years.
6. That the said advertisement does not purport to advertise the
said lot for two years' taxes unpaid and in arrears.
7. That the said property so attempted to be sold was not
described with sufficient certainty either in the advertisement or
at the sale.
For which several defects in the process of the assessment,
advertisement, and sale of the said lot the said sale is illegal
and void.
The defendant excepted to all these instructions and opinions of
the court, and prosecuted this writ of error.
Page 29 U. S. 358
MR. JUSTICE McLEAN delivered the opinion of the Court.
The defendant in error brought an action of ejectment in the
circuit court to recover possession of lot No. 4, in square No.
491, in the City of Washington, half of which had been sold for
taxes, and under the special instructions of the court, recovered a
verdict and judgment. Several exceptions were taken to the
competency of the evidence admitted on the trial, all of which
appear in the bill of exceptions.
The first objection was taken to the competency of the proof of
the assessment of the lot for taxation; the legality of the tax is
not disputed.
To show the taxes assessed on the lot for the years 1820 and
1821, the defendant below produced in evidence the official tax
books of the corporation, regularly made up by its officers, from
which it appeared that the plaintiff stood charged for 1820, with
$31.86 for the tax on the half of lot No. 4, which contained 4,202
square feet, valued at $1,680. For the year 1821, he stood charged
with $8.40 tax on the same lot. It appeared in proof that the
assessors appointed by the authority of the corporation make a
valuation of
Page 29 U. S. 359
property within the city about the month of October annually,
and a return of their proceedings, which are laid before the board
of appeal empowered to correct the valuations of the assessors
according to the laws and ordinances of the corporation. The
assessment lists are then returned to the register of the
corporation. The register then proceeds to make out the tax books,
from the original assessment lists returned by the assessors, and
corrected by the board of appeal. But it was contended that the
original lists of the assessors must be produced and also proof of
their appointment.
The Court recognizes the correctness of the principle contended
for by the counsel for the plaintiff in error; that in an
ex
parte proceeding of this kind, under a special authority,
great strictness is required. To divest an individual of his
property against his consent, every substantial requisite of the
law must be shown to have been complied with. No presumption can be
raised in behalf of a collector who sells real estate for taxes to
cover any radical defect in his proceeding, and the proof of
regularity in the procedure devolves upon the person who claims
under the collector's sale.
In this case, was it necessary to exhibit proof of the regular
appointment of the assessors? They acted under the authority of the
corporation, and the highest evidence of this fact is the sanction
which it has given to their return. This return has been examined
and corrected by the board of appeal, and was then handed over to
the register. What better proof can be required of the assessor's
authority to act?
The municipal powers of the corporation are conferred by a
public law, and all courts are bound to notice them. Is it
necessary in any case to go into the proof of the election of the
mayor, or any of the other officers of this corporation? This has
not been contended, nor can it be necessary to prove the
appointment of an officer of the corporation who has acted under
its authority and whose proceedings, as in the present case, have
received its express sanction.
Did the court below err in requiring the original assessment
lists to be produced?
These lists, under the law, were not conclusive on the
Page 29 U. S. 360
corporation, or on the person whose property was assessed. They
were laid before the Court of Appeal for its correction and
sanction, and they were then passed to the register.
If the assessment was not conclusive, or indeed binding on
either party until sanctioned by the board of appeal, then, without
this sanction, the assessment lists could not be received as
evidence. These lists being handed over to the register, the law
requires him to furnish a tax book to the collector from the
original assessment lists on file in his office, according to a
prescribed form. This was done in the case under consideration, and
is not this book evidence?
It was made out and arranged by an officer in pursuance of a
duty expressly enjoined by law. This not only makes the tax book
evidence, but the best evidence which can be given of the facts it
contains. In this book are stated the name of the owner of the
property, and his residence, if known; the number of the square,
the number of the lot, the square feet it contains; the rate of
assessment, the valuation, and the amount of the tax. Only a part
of these appear upon the assessment list.
This Court thinks that the circuit court erred in their
instructions to the jury on both of the points stated: 1. in
deciding that the proof was not competent to show the authority of
the assessors, and 2. that the official tax book, certified by the
register, did not prove an assessment of the property.
The next point presented by the bill of exceptions is as to the
legality of the notice of sale given by the collector.
The court instructed the jury that the advertisement was
defective in several particulars.
By the tenth section of the act of Congress which directs this
proceeding the collector is required to give public notice of the
time and place of sale by advertising once a week in some newspaper
printed in the City of Washington for three months when the
property is assessed to a person who resides within the United
States, but without the District of Columbia.
Notice of the sale of the lot in controversy was given by the
collector first, in a newspaper published 6
Page 29 U. S. 361
December, 1822, and last in the same paper of 10 March, 1823.
These periods embrace the time the advertisement is required to be
published, but it is contended that the notice was not published
once in each week within the meaning of the act of Congress.
In examining the dates of the publications, it appears that
eleven days at one time transpired between them, and at another
time ten days, at another eight.
These omissions, it is contended, are fatal; that the
publication being once made, it was essential to the validity of
the notice that it should be published every seventh day
thereafter.
The words of the law are, "once a week." Does this limit the
publication to a particular day of the week? If the notice be
published on Monday, is it fatal to omit the publication until the
Tuesday week succeeding? The object of the notice is as well
answered by such a publication as if it had been made on the
following Monday.
A week is a definite period of time, commencing on Sunday and
ending on Saturday. By this construction, the notice in this case
must be held sufficient. It was published, Monday, January 6, and
omitted until Saturday, January 18, leaving an interval of eleven
days; still, the publication on Saturday was within the week
succeeding the notice of the sixth.
It would be a most rigid construction of the act of Congress,
justified neither by its spirit nor its language, to say that this
notice must be published on any particular day of a week. If
published once a week for three months, the law is complied with
and its object effectuated.
The circuit court erred on this point in their instructions to
the jury.
The court below also instructed the jury,
"that the corporation, or its collector of taxes, acting under
its authority, was not competent to advertise and sell any part of
said lot No. 4, for the taxes assessed on the same."
By the law, not less than a lot, when the property upon which
the tax has accrued is not less than that quantity, may be sold for
the taxes due thereon.
Page 29 U. S. 362
No doubt can exist that a part of a lot may be sold for taxes
where they have accrued on such part; it appears, therefore, that
the circuit court have also erred on this point.
It is again objected "that the entire lot should have been
assessed to the two tenants in common, Taylor and Toland, and
accordingly advertised and sold, as assessed to them."
The same valuation was placed on each half of this lot, so that
so far as the assessment goes, it did not substantially differ from
the instruction given. But the sale, to be valid, need not extend
to the interest of both claimants. One having paid his share of the
tax, the interest of the other may well be sold for the balance.
The court therefore erred in its instructions on this point
also.
In its fourth instruction, the court said to the jury
"that the advertisement did not sufficiently designate what half
of the said lot was charged with the said taxes, and was to be sold
for the same, and did not purport to be an advertisement of an
undivided moiety."
The law requires
"the number of the lots (if the square has been divided into
lots), the number of the square or squares, or other sufficient or
definite description of the property selected for sale, to be
stated in the advertisement."
Congress had two objects in view in requiring this notice to be
given.: 1. to apprise the owner of the property, and 2. to give
notice to persons desirous of purchasing. These objects are
important. It is necessary for the interest of the owner that he
should be informed of a proceeding which, unless arrested by the
payment of the tax, would divest him of his property. And it was of
equal if not greater importance that the property should be so
definitely described that no purchaser could be at a loss to
estimate its value.
It is not sufficient that such a description should be given in
the advertisement as would enable the person desirous of purchasing
to ascertain the situation of the property by inquiry. Nor, if the
purchaser at the sale had been informed of every fact necessary to
enable him to fix a value upon the property; yet the sale would be
void unless the same information had been communicated to the
public in the notice. Its defects, if any exist in the description
of the
Page 29 U. S. 363
property to be sold, cannot be cured by any communication made
to bidders on the day of sale by the auctioneer.
What was the description given in the advertisement of the
property in controversy? It was described to be half of lot No. 4,
in square No. 491, and the other half was advertised at the same
time under the same description, as belonging to Toland's
heirs.
What would be understood by such a description? Suppose half a
square had been advertised, it not having been divided into lots;
would it convey that certainty to the public as to the precise
property about to be sold that would enable anyone to form an
opinion of its value? No one could suppose that an undivided half
of the square was to be sold under the notice, and which half was
offered could not be determined from the advertisement. Would this
be a notice under the requisites of the law?
The value of a lot or half lot depends upon its situation. If
one of the half lots front two streets in a populous part of the
city, it is of much higher value than the other half. And this
difference in value may still be greater if the lot be situated
near the middle of a square, fronting the street, and it be divided
so as to cut off one-half of it from the street.
It will thus be seen that it is not a matter of small importance
to the person who wishes to purchase to know which half of a lot is
offered for sale, and as any uncertainty in this matter must
materially affect the value of the property at the sale, it is of
great importance to the owner that the description should be
definite. That an undivided moiety of a lot may be sold for taxes
has already been stated. But would anyone understand that one-half
of lot No. 4 means an undivided moiety?
In all cities, half lots are as common as whole ones, and when a
half lot is spoken of, we understand it to be a piece of ground
half the size of an entire lot and of as definite boundaries.
The illustrations given show how great a difference in value may
exist between halves of the same lot. And would not the preferable
half be of much higher value than an undivided moiety of the entire
lot?
Page 29 U. S. 364
In every point of view in which this notice can be considered,
under the act of Congress, it was radically defective. The property
should have been described as an undivided half of lot No. 4. Under
such a description, no one could be at a loss as to its situation
and value. The instructions of the circuit court on this point are
not erroneous.
In their fifth instruction, the court said
"That the corporation, or its collector, had no power or
authority to advertise the said lot for sale till the last of the
two years' taxes for which the same was advertised for sale, had
remained unpaid and in arrear for two years."
The tenth section of the act of Congress, which governs this
subject, provides
"That real property, whether improved or unimproved, in the City
of Washington on which two or more years' taxes shall have remained
due and unpaid, or on which any special tax imposed by virtue of
the authority of the provisions of this act shall have remained
unpaid for two or more years after the same shall have become due,
may be sold,"
&c.
In this section, a distinction is made between a general and a
special tax. Property may be sold to pay the former so soon as two
years' taxes shall be due, but to pay the latter, property cannot
be sold until the expiration of two years after the second year's
tax becomes due.
The taxes for which the lot in controversy was sold were
assessed in 1820 and 1821, and by the ordinance of the corporation
they became due on 1 January succeeding the assessment.
A special tax for paving was charged against Taylor in 1820, and
composed a part of the sum for which the property was sold.
This special tax became due on 1 January, 1821, but the ground
on which it was assessed was not liable to be sold for the tax
until 1 January, 1823. On 1 January, 1822 the same property was
liable to be sold under the assessments of the years 1820 and 1821,
for a general tax.
The first notice of the sale was given on 6 December, 1822,
nearly a month before the lot was liable to be
Page 29 U. S. 365
sold for the special tax of 1820. Does this render the notice
invalid?
This Court thinks that the whole period should have elapsed
which was necessary to render the lot liable to be sold for special
tax before the advertisement was published. That the owner of the
lot, by paying the tax at any time before 1 January, 1823, would
save it from the liability of being sold, and that until this
liability had attached he could not be chargeable with the expense
of notice, nor could it legally be given.
The circuit court therefore did not err in their instruction to
the jury on this point.
The court also instructed the jury that the advertisement was
defective as it "does not purport to advertise the said lot for two
years' taxes unpaid and in arrear." It states that the lot was
offered for sale, "for taxes due thereon up to the year 1821." This
was sufficient, for if the taxes were due, and the property was
liable to be sold for them, it can be of no importance to the
purchaser to have a more technical description of the tax than the
notice contained.
The seventh instruction, "that the said property attempted to be
sold was not described with sufficient certainty either in the
advertisement or at the sale" is substantially embraced by the
fourth instruction which has been considered.
For the errors specified, the judgment of the circuit court must
be
Reversed and the cause removed to that court for further
proceedings in conformity to this opinion.
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 ordered and adjudged by
this Court that the judgment of the said circuit court in this
cause be and the same is hereby reversed and that the cause be and
the same is hereby remanded to the said circuit court for further
proceedings to be had therein according to law and justice.
