A deed was executed in Glasgow, Scotland, by which land in Ohio,
which had been patented to David Buchanan by the United States, was
conveyed to Walter Sterling. The deed recited that it was made in
pursuance of a decree of the Circuit Court of the United States for
the District of Virginia. No exemplification of the decree was
offered in evidence in support of the deed. The court held that as
Buchanan was the patentee of the land, although he made the deed in
pursuance of the decree of the Circuit Court of Virginia, the
decree could add nothing to the validity of the conveyance, and
therefore it was wholly unnecessary to prove the decree. The deed
was good without the decree.
The possession of a deed, regularly executed, is
prima
facie evidence of its delivery. Under ordinary circumstances,
no other evidence of the delivery of a deed than the possession of
it by the person claiming under it is required.
The grantor in the deed was David Carrick Buchanan, and he
declares in it that he is the same person who was formerly David
Buchanan. The circuit court was required to charge the jury that it
was necessary to convince the jury by proofs in court that David
Carrick Buchanan is the same person as the grantor named in the
patent, David Buchanan, and that the statement by the grantor was
no proof to establish the fact. The circuit court instructed the
jury that they must be satisfied from the deed and other documents
and the circumstances of the case that the grantor in the deed is
the same person to whom the patent was issued, and they declared
their opinion that such was the fact. By the Court: The principle
is well established that a court may give its opinion on the
evidence to the jury, being careful to distinguish between matters
of law and matters of opinion, in regard to the fact. When a matter
of law is given by the court to the jury, it should be considered
by the court as conclusive, but a mere matter of opinion as to the
facts will only have such influence on the jury as it may think it
entitled to.
The law knows of but one Christian name, and the omission or
insertion of the middle name or of the initial letter of that name
is immaterial, and it is competent for the party to show that he is
known as well without as with the middle name.
A deed of lands sold for taxes cannot be read in evidence
without proof that the requisites of the law which subjected the
land to taxes had been complied with. There can be no class of laws
more strictly local in their character, and which more directly
concern real property, than laws imposing taxes on lands, and
subjecting the lands to sale for unpaid taxes. They not only
constitute a rule of property, but their construction by the courts
of the state should be followed by the courts of the United States
with equal if not with greater strictness than any other class of
laws.
The Supreme Court of Ohio has required a claimant under a tax
title to show, before his title can be available, a substantial
compliance with the requisites of the law.
In an action of ejectment, the defendants having entered into
the consent rule, the plaintiff in Ohio is not to be called upon to
prove the calls of the patent under which he claims on the ground
of establishing the different corners. The defendants are bound to
admit, after they have entered into the consent rule, that they are
in possession of the premises claimed by the lessor of the
plaintiff.
In 1836, the lessee of the defendants in error instituted an
action of ejectment against the plaintiffs in error in the Circuit
Court of the United States for the District of Ohio for a tract of
land lying between the Little Miami and Sciota rivers in that part
of the State of Ohio known as the Virginia Military District, being
on a survey
Page 39 U. S. 323
under a part of a military land warrant for one thousand acres.
The cause was tried at July term, 1838, and a verdict and judgment
were entered for the plaintiffs in the action, the defendant in
error.
On the trial of the cause, the defendant tendered a bill of
exceptions. The bill of exceptions states that the plaintiff
offered in evidence in support of his action:
First, a certified copy of a deed from David Carrick Buchanan to
Walter Sterling, dated June 27, 1825. The patent from the United
States, dated 22 May, 1802, for the land in controversy, was
granted to David Buchanan by the President of the United States,
and the deed was executed by David Carrick Buchanan, stating that
he had formerly been David Buchanan. The defendants asked the court
to instruct the jury that the statement in the deed by the grantor
that he had formerly been David Buchanan is no proof that he was
David Carrick Buchanan. This instruction the court refused. The
deed from David Carrick Buchanan recited that the deed was executed
in conformity with a decree of the Circuit Court of the United
States for the Fifth Circuit, in the Virginia District, to convey
the land described in it to Walter Sterling in fee simple. The
defendants excepted further to the introduction of the deed in
evidence because the proceedings of the Circuit Court of the United
States in Virginia recited in the deed were not produced with it.
But the court overruled the objection.
Second, the defendants in their defense offered in evidence a
certified copy of a paper, purporting to be a deed from William
Middleton, Auditor of Brown County, to John S. Wills, bearing date
April 22, 1824, for two hundred acres of land, and insisted it was
duly acknowledged as such deed, and such copy was duly certified by
the recorder of Brown County. The deed from William Middleton, the
Auditor of Brown County, recited that a sale had been made of two
hundred acres of land by William Middleton, county auditor, to John
S. Wills on 29 December, 1823, for arrearages of taxes due to the
State of Ohio for 1821, 1822, 1823, for the lands conveyed, the
land being part of the land patented to Buchanan. The deed
particularly described, by metes and bounds the tract conveyed, and
granted the same to John S. Wills in fee simple. It was duly
acknowledged according to the laws of Ohio and recorded in the
proper office.
The plaintiff objected to this deed as not competent to go to
the jury without evidence of the proceedings and acts of the public
officers prior and at the sale of said land for the tax, and
insisted it ought to be admitted, and the court sustained the
objection and overruled the evidence, and declared its opinion that
the same evidence should not be admitted, and the same was rejected
accordingly.
The defendants then offered the same deed or copy of deed,
accompanied by a duly certified copy of the record of the
proceedings at and before the sale of said land for taxes, bearing
date 9 May, 1838, certified by Hezekiah Lindsey, County Auditor of
said County
Page 39 U. S. 324
of Brown, which copies or papers and certificates thereon are
referred to as a part of the bill of exceptions, whereupon the
plaintiffs, by counsel, objected to the admission of the same on
the ground that the same did not contain all the legal requisites
to justify and authorize said sale and conveyance of said land for
taxes, and of this opinion was the court, and declared its opinion
to be that the same ought not to be admitted in evidence in this
case, and the same were rejected accordingly.
The defendants below gave in evidence a transcript of the record
of the proceedings and decree of the Supreme Court of the State of
Ohio in a case wherein White's heirs and J. S. Wills' heirs and H.
Brush were complainants, and David Buchanan, in his lifetime, was
defendant, and his unknown heirs, after his decease, were, by bill
of revivor, made defendants, wherein the title to the premises in
question was decreed to the complainants in that suit.
The defendants asked the court to instruct the jury that the
record of the proceedings and decree given in evidence by
defendants may be considered by the jury as conveying the title to
the land in controversy in that suit to the complainants therein,
and will and ought to affect parties and privies who had knowledge
of the same to prevent their taking title from the defendant
therein from the time such knowledge existed. In place of this
instruction, the court instructed the jury that to prevent Buchanan
from making a good deed to those lands, it was necessary he should
have notice, actual or constructive, prior to the making such deed,
and of the commencement of the suit, the service of the process or
the order of publication, giving such notice to appear and answer,
and such publication made, to be proved; if the jury should find
the deed from Buchanan to Sterling was dated June 27, 1825, and was
at that time delivered, and the order of the court for the
publication not made until August following, as appears in the
record aforesaid, it was competent for Buchanan to make such deed
to Sterling, and the court declared their opinions accordingly.
The defendant prosecuted this writ of error.
Page 39 U. S. 326
MR. JUSTICE McLEAN delivered the opinion of the Court.
An action of ejectment was brought by Dunn against the
defendants in the circuit court for the recovery of a certain tract
of land, and on the trial, exceptions were taken to the rulings of
the court, which being the points decided before this Court.
The first objection taken was that the deed offered in evidence
by the plaintiff from David Carrick Buchanan to Walter Sterling,
recited the proceedings and decree of a court of the United States,
for the Fifth Circuit, and Virginia District, &c., and no
exemplification of the record of such proceedings and decree was
offered in evidence in support of the deed. Buchanan was the
patentee of the land, and although he made the conveyance in
pursuance of the decree, yet as the fee was in him, the decree
could add nothing to the validity of the conveyance, and it was
therefore wholly unnecessary to prove it. The deed was good without
the decree, and was only referred to by the grantor to show the
consideration, in part, for making it.
The defendant also objected to the admission of the deed in
evidence because
"it was not duly acknowledged and proved, according to law,
there being no proof of the delivery, either in the acknowledgment
or other proof, except what appears on the deed, and that it was in
possession of the lessor of the plaintiff."
This deed was executed at Glasgow, in Scotland, and its
execution was proved by the two subscribing witnesses, who swore
"that they saw the said grantor seal as his own proper act and
deed, in due form of law, acknowledge and deliver this present
conveyance." This oath was administered by the Lord Provost and
Chief Magistrate of Glasgow, and which he duly certified, under his
seal of office.
The objection did not go to the execution of the deed, but to
the want of proof of the delivery.
In the conclusion of the deed, it is stated to have been signed,
sealed, and delivered in presence of the subscribing witnesses, and
they swear that it was delivered. But independently of these
Page 39 U. S. 327
facts, the possession of the deed by the lessor of the
plaintiff, who offers it in proof, is
prima facie evidence
of its delivery. Under ordinary circumstances, no other evidence of
the delivery of a deed than the possession of it by the person
claiming under it is required.
The defendant also objected to this deed that it did not appear
that the grantor, David Carrick Buchanan, was the same person named
as grantee in the patent, who is called David Buchanan.
In the deed the grantor declares, that "I, David Carrick
Buchanan, formerly David Buchanan," &c.
And in connection with this objection, the court was asked to
charge the jury
"That it is necessary for the plaintiff to convince them by
proofs in court that David Carrick Buchanan is the same person as
David Buchanan, named as grantee in the patent. That his statement
of the fact in the deed is no proof tending to establish that
fact."
The court instructed the jury that it must be satisfied from the
evidence given to it, to-wit, by the deed and other documents in
evidence and the circumstances of the case, that the grantor in the
deed to Sterling is the same person to whom the patent was issued,
and it declared its opinion that such was the fact.
The principle is well established that a court may give its
opinion on the evidence to the jury, being careful to distinguish
between matters of law and matters of opinion in regard to the
facts. When a matter of law is given by the court to the jury, it
should be considered as conclusive; but a mere matter of opinion as
to the facts will only have such influence on the jury as it may
think it is entitled to.
The law knows of but one Christian name, and the omission or
insertion of the middle name or of the initial letter of that name
is immaterial, and it is competent for the party to show that he is
known as well without as with the middle name. 5 Johns. 84.
37 U. S. 12
Pet. 456.
We think there was no error in the circuit court either in
admitting the deed or in their instruction to the jury on the point
stated.
A deed from Sterling to Walter Dunn, the lessor of the
plaintiff, for the premises in controversy was objected to on the
ground "that the delivery thereof was not proved nor acknowledged
in the acknowledgment and proof thereof thereon endorsed."
This deed is not in the record, and it cannot, therefore, be
inspected; nor can it indeed be considered in reference to the
objection. But the same question is raised, it seems, on this deed
as was made on the deed from Buchanan to Sterling, and the remarks
of the court on that exception would be equally applicable to this
if the deed to Dunn were in the record.
The evidence of the lessor of the plaintiff being closed, the
defendants offered in evidence a certified copy of a paper
purporting to be a deed from the Auditor of Brown County, to John
S. Wills, dated
Page 39 U. S. 328
22 April, 1824, for two hundred acres of land in the tract
claimed by the lessor of the plaintiff, which the court overruled
on the ground that it could not be received without proof that the
requisites of the law which subjected the land to taxation and sale
had been complied with.
The defendants then offered the same deed or copy of a deed,
accompanied by a duly certified copy of the record of the
proceedings, at and before the sale of said land, for taxes, dated
9 May, 1838, certified by Hezekiah Lindsey, County Auditor of said
County of Brown, which the court overruled.
The laws of Ohio imposing a tax on lands and regulating its
collection, like similar laws in perhaps almost all the other
states, are peculiar in their provisions, having been framed under
the influence of a local policy. And this policy has to some extent
influenced the construction of those laws. There can be no class of
laws more strictly local in their character and which more directly
concern real property than these. They not only constitute a rule
of property, but their construction by the courts of the state
should be followed by the courts of the United States with equal if
not greater strictness than the construction of any other class of
laws.
It will be found from the Ohio reports that the supreme court
has required a claimant under a tax title to show, before his title
can be available, a substantial compliance with the requisites of
the law. In 2 Ohio 233, the court said
"The requisitions of the law are substantial and useful, and
cannot be dispensed with. Tax sales are attended with greater
sacrifices to the owners of land than any others. Purchasers at
those sales seem to have but little conscience. They calculate on
obtaining acres for cents, and it stands them in hand to see that
the proceedings have been strictly regular."
In the case of
Lessee of Holt's Heirs v. Hemphill's
Heirs, 3 Ohio 232, the court decided that "a deed from a
collector of taxes is not available to transfer the title without
proof that the land was listed, taxed, and advertised," &c.
The Act of 2 February, 1821, provides that
"All deeds of land sold for taxes shall convey to the purchaser
all the right, title, and interest of the former proprietor in and
to the land so sold, and shall be received in all courts as good
and sufficient evidence of title in such purchaser."
Under this and similar provisions which are found in the various
tax laws up to 1824, the courts of Ohio seem never to have held
that the deed on a tax sale is admissible as evidence of title
unaccompanied by proof that the substantial requisites of the law
in the previous steps had been complied with. The collector or
person making the sale was considered as acting under a special
authority, and that his acts must be strictly conformable to law to
divest the title of real property without the consent of the owner.
And the purchaser at such sales is held bound to see that the
requirements
Page 39 U. S. 329
of the law, which subject the land to sale for taxes, had been
strictly observed. These principles have been repeatedly sanctioned
by this Court.
We will now examine the statutes under which the sale in
question was made, with the view of ascertaining whether the
circuit court erred in overruling the record of the auditor,
offered in evidence to support the tax deed.
The Act of 8 February, 1820, and the act to amend the same of 2
February, 1821, are the laws under which the title in question was
obtained.
The county auditor is required to make out from the books or
lists in his office, every year, a complete duplicate of all the
lands listed in his office subject to taxation, with the taxes
charged thereon. In which duplicate he shall state proprietor's
name, the number of entry, for whom originally entered, the
quantity of land contained in the original entry, the county,
watercourse, number of acres, whether first, second, or third rate
land, and the amount of taxes charged thereon. These matters of
description are required to be entered in separate columns opposite
the name of the proprietor. And the auditor is required to keep a
book for that purpose and to record in the form above specified the
lands entered in his county for taxation.
If the tax be not paid in the county by 20 November, or to the
state treasurer by 31 December, in each year, the lands are to
remain charged with all arrearages of taxes and the lawful interest
thereon until the same shall be paid, to which there shall be added
a penalty of twenty-five percent on the amount of tax charged for
each year the same may have been delinquent.
The auditor of the state is required to compare the list of
defalcations transmitted from each county auditor with the
duplicates sent to his office from said county for the same year,
and to record in a book kept for that purpose the delinquent lands
and charge the same with penalties and interest. And the county
auditor is required, in making out the duplicate for his county, to
charge each tract, in addition to the tax for the current year,
with the tax, interest, and penalty of the preceding year, which
shall be entered in a separate column to be designated for that
purpose on said duplicate. And when lands are returned delinquent
for two years, the penalty and interest are to be charged for each
year by the state auditor, who is required to transmit the same to
the county auditor, and he is forbidden to enter lands a second
time delinquent on the duplicate for the current year.
On receiving this list of lands a second time delinquent, the
auditor is required to advertise the same six weeks successively in
a newspaper printed in the county, which advertisement shall state
the amount of the tax, interest and penalties due on each tract,
and the time of sale, &c. All sales are to be made by the
county auditor, and on such sale's being made he is required "to
make a fair
Page 39 U. S. 330
entry descriptive thereof in a book to be provided by him for
that purpose," and shall also
"record in said book all the proceedings relative to the
advertising, selling, and conveying said delinquent lands, which
record shall be good evidence in all courts holden within this
state."
The record offered in evidence is stated to be a
"record of the proceedings relative to the advertising, selling,
and conveying the lands delinquent for tax for the years 1821,
1822, and 1823, within the County of Brown and State of Ohio."
"Be it remembered that the following lands, as herein set forth,
advertised for sale, in the names of the person to each tract
annexed, were regularly entered on the duplicates for taxation, by
the Auditor of Brown County, for the year 1821, the tax whereon not
being paid for said year, the collector of said county returned the
same as delinquent therefor, whereupon the said county auditor made
out and transmitted to the auditor of state a list of said lands so
returned as delinquent, and afterwards a list of said lands, with
the amount of taxes, penalty, and interest charged thereon, was
transmitted by the auditor of state to the county auditor of said
county, whereupon a copy thereof was published three weeks in
succession in a newspaper printed at Georgetown, Brown County,
Ohio, in general circulation in said county, and afterwards the
county auditor, in making out the duplicate for said county the
succeeding year, to-wit, for the year 1822, charged each tract in
addition to the tax for said year 1822, with the tax, interest, and
penalty of the preceding, and sent the same out a second time for
collection; the tax on said land not being paid for the year 1822,
they were a second time returned delinquent for the nonpayment of
the tax, penalty, and interest charged thereon, a list of which was
again transmitted to the auditor of the state; that afterwards the
said auditor of the state did transmit,"
&c.
This, together with the advertisement published six months
before the sale of the land, is the record and only evidence
offered to show that the legal requisites of the law had been
complied with, previous to the sale of the land.
The first objection which arises to this paper is that it is a
mere historical statement of the facts as they occurred, and not a
copy from the record.
The first important step is to show that the land was listed for
taxation. On this depends the validity of the subsequent
proceedings. And how is this shown by this record? It states that
"the land was regularly entered on the duplicates for taxation, and
sent out for collection for the year 1821," &c. Now this is a
mere statement of the fact, and not an exemplification of the
record.
The record of the auditor shows in what manner the land was
listed for taxation, the amount of tax charged, the description of
the land required by the law, and the rate at which it was entered.
But the auditor in the record before us has stated that the entry
or list
Page 39 U. S. 331
was regularly made without copying the same from his records,
which copy would enable the court to determine whether the entry
for taxation had been made legally. Now this is the foundation of
the whole proceeding, and unless the court will substitute the
judgment of the auditor for their own, it is impossible for them to
say the land was entered for taxation according to law.
Suppose the auditor had, instead of copying the advertisement on
which the land was sold, merely stated that the land had been
regularly advertised; could such a statement have been held
sufficient? Perhaps no one acquainted with the legal requisites on
this point could hesitate in deciding that such a statement would
be radically defective. That the advertisement constituted an
essential part of the record, as the court could only judge of its
sufficiency by inspecting it. It would not do, therefore, for the
auditor to withhold from his record and the court the
advertisement, and merely say that it was regular.
Clear as this point is, it is not less so than the objection
above stated. The listing of the land in conformity to law is as
essential as advertising it for sale. But in this record we have no
evidence that the land was entered according to law except the mere
statement of the fact by the auditor that it was so entered.
Is this statement evidence? The law makes the record evidence,
but this statement is evidently made out not by copying from the
record, but by looking at the record and giving in a short
statement what the auditor supposed to be the fact.
Suppose it should be important in any other case to show that
this land had been regularly entered for taxation in the year 1821.
Would the certificate of the auditor, in general terms, that the
land was regularly entered that year be evidence? Must not the
record itself be produced, or an exemplification of it which would
show how it had been entered and enable the court to judge of the
regularity of the entry? That this would be required seems too
clear for argument, and yet in no possible case could this evidence
be so important as in the case under consideration.
If the court is to receive the mere statement of the auditor
that the land was regularly entered, which is the first step in the
proceeding, and as important as any other, to be consistent, it
must receive his mere statement as proof that the subsequent steps
were taken as to the charge of penalties and interests and
delinquencies, and that it was advertised regularly and sold. This
would be a short mode of arriving at the result, and might add
somewhat to the validity of the titles, in disregard, however, to
the rights of the nonresident landholder.
The law requires the auditor, on receiving the list of
delinquent lands from the state auditor, to give public notice by
advertisement for three weeks in succession in some newspaper in
general circulation in his county of the amount of taxes charged,
&c. Now if this advertisement be not published, the land cannot
be returned by the auditor a second time as delinquent, and if not
regularly returned
Page 39 U. S. 332
as delinquent twice, it is not liable to be sold. And what
evidence is there in the record that this notice was given. There
is none but the mere statement of the fact that such notice was
given three weeks in succession in a newspaper printed in
Georgetown. Now if the statement of the auditor be sufficient as to
this notice, it must be held equally good as to the notice of the
sale. This land was transmitted from the auditor of the state
twice, charged with penalties, to the county auditor, who, by the
thirty-sixth section of the act of 1820, was required to publish
the same, when received, three weeks, but it seems from his record
that this notice has been but once given.
And again there is no evidence that the penalties were charged
and the interest added but the mere statement of the auditor. What
amount was charged as penalty and the amount of interest added
nowhere appears.
In the list published in the notice of sale it does not appear
at what rate the land was entered for taxation, and the gross sum
of fifty dollars is charged without showing of what items it was
composed. In the case of
Lafferty's Lessee v. Byers, 5
Ham. 458, the plaintiff offered in evidence an exemplified copy of
the books of the county auditor showing the listing for taxation,
and the advertisement of the sale.
Upon the whole, we think that the court did not err in rejecting
the paper certified by the auditor as a record. We think that this
record contained no evidence that the land was regularly listed for
taxation, and that it was defective in not showing that other
important requisites of the law had been complied with. That it is
a mere historical account of the facts as they transpired, and not
the record evidence of those facts as they appear or should appear
on the record.
Under the law of 1824, which makes the tax deed
prima
facie evidence, the Ohio courts have not required proof to the
same extent in support of the deed as before such law. But the
present case does not come under this law, and it is unnecessary to
go into its construction by the Ohio courts. 5 Ohio 370.
The defendants gave in evidence a duly authorized transcript of
the record, proceedings, and decree of the Supreme Court of the
State of Ohio of a certain case wherein White's heirs and J. S.
Wills' heirs and H. Brush were complainants and David Buchanan,
deceased, in his lifetime defendant, and his unknown heirs
defendants after his death, by bill of revivor, wherein the title
to the premises in question and other lands were decreed to
complainants. And here the defendants rested their case.
The court was asked to instruct the jury by the defendant that
it was necessary for the plaintiff to prove the calls of his patent
for the ground by establishing the different corners, &c. But
the court refused to give the instruction as requested and informed
the jury that by a rule of court, the defendants having entered
into the consent rule, were bound to admit, at the trial that they
are in possession
Page 39 U. S. 333
of the premises claimed by the lessor of the plaintiff. And
there can be no doubt that under the rule this decision of the
court was correct.
This was not a dispute about boundaries, but of title, and in
such a case the rule referred to is salutary, and supersedes the
necessity of proving the possession of the defendant. Without this
rule it would have been incumbent on the plaintiff to prove the
possession, but this could have been done by anyone who had a
general knowledge of the land in controversy and who could state
that the defendant was in possession.
And the court instructed the jury that the pendency of the suit
against Buchanan and his heirs could in no sense be held
constructive notice to Sterling in receiving the deed from Buchanan
after the commencement of the suit unless the process had been
served or publication made before such deed was executed.
There can be no doubt that this instruction was proper, and upon
the whole we
Affirm the judgment of the circuit court.
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
Ohio 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 affirmed with
costs.
