1. Statutory requirements intended for the guide of officers in
the conduct of business devolved upon them and designed to secure
order, system, and dispatch in proceedings, and by a disregard of
which the rights of parties interested cannot be injuriously
affected, are not usually regarded as mandatory unless accompanied
by negative words importing that the acts required shall not be
done in any other manner or time than that designated. But
requirements intended for the protection of the citizen, and to
prevent a sacrifice of his property, and by a disregard of which
his rights might be and generally would be injuriously affected,
are not directory, but mandatory. The power of the officer in such
cases is limited by the manner and conditions prescribed for its
exercise.
2. The provision of a statute of California that the sheriff, in
selling property upon a judgment recovered by the state against the
property for delinquent taxes, shall
only sell the smallest
quantity of the property which any purchaser will take and pay
the judgment and costs was intended for the protection of the
taxpayer, and is mandatory upon the officer and not directory
merely.
3. The recitals in a deed of a sheriff as to the manner in which
he executed a judgment directing the sale of property are evidence
against the grantee and parties claiming under him. Accordingly a
deed of this officer reciting a sale of property under a judgment
for taxes to the highest bidder, when he was authorized by the
statute only to sell the smallest quantity of the property which
anyone would take and pay the judgment and costs, was held to be
void on its face.
4. A bill of exceptions dated during the term at which the trial
was had, though some days after the trial, is sufficient if it show
that the exceptions were taken at the trial.
This was an action for the possession of a tract of land
Page 80 U. S. 507
situated in the County of Sacramento, in the State of
California,
"commencing at the corner of Main and Water Streets of the Town
of Sutter, at the east bank of the Sacramento River; running
thence, in a northerly direction, up and along said river one-half
of a mile; thence in an easterly direction one mile; thence
southerly, at right angles, one-half mile; and thence westerly, at
right angles, one mile, to the place of beginning, containing three
hundred and twenty acres."
The plaintiff derived his title by deed from a certain R. H.
Vance, dated March 1, 1862. Vance acquired his title through sundry
mesne conveyances from John A. Sutter, to whom a grant of land,
including the premises in controversy, was made in June, 1841, by
the then Governor of the Department of California. This grant was,
in March, 1852, submitted to investigation under the act of
Congress of March 3, 1851, to ascertain and settle private land
claims in California, and was adjudged valid and confirmed by a
decree of the Board of Commissioners created under that act, and by
the district court and the Supreme Court of the United States, to
which the decision of the board was carried on appeal. A patent of
the United States pursuant to the decree followed to the grantee,
bearing date in June, 1866. As this patent took effect by relation
as of the day when the proceedings for its acquisition were
instituted in March, 1852, all the title and rights, which it
conferred to the premises in controversy, enured to the benefit of
the plaintiff claiming under the patentee, although the deed to him
was executed before the patent was issued.
The defendants asserted title to the premises under a deed
executed by the Sheriff of Sacramento County upon a sale on a
judgment rendered for unpaid taxes assessed on the property for the
year 1864, and the whole case turned upon the validity of this tax
deed.
By an act of California, passed in 1861, the district attorneys
of the several counties of the state are authorized and required to
commence actions for the recovery of taxes assessed upon real
property and improvements thereon
Page 80 U. S. 508
which remain unpaid after a prescribed period. [
Footnote 1] Such actions are to be brought in
the name of the people in the courts having jurisdiction of the
amount claimed in the counties where the property is situated,
against the parties delinquent, the real property and improvements
assessed, and against all owners or claimants of the same, known or
unknown. The manner in which process issued in such actions shall
be served, actually upon the defendants if found and constructively
upon defendants absent from the county and upon the real property
and improvements, is specially prescribed. The answers which shall
be allowed therein are also designated, and all acts required
between the assessment of the taxes and the commencement of the
actions are declared to be directory merely. Personal judgments are
only authorized against defendants who are actually served with
process or who appear in the actions, but judgments can be
rendered, upon service of process by posting, against the real
estate and improvements for the taxes assessed, severally against
each, if they belong to different owners and are separately
assessed, and jointly against both if they belong to the same
owners.
The act regulating proceedings in civil cases generally in the
courts of the state, passed in 1851, and its several amendments, so
far as they are not inconsistent with the special provisions of the
act of 1861, are made applicable to proceedings under the latter
act for the recovery of delinquent taxes, subject to the proviso
that the sheriff in selling the property under the judgment
"shall only sell the smallest quantity that any purchaser will
take and pay the judgment and all costs." By the act of 1851,
the sheriff is required to sell property under ordinary judgments
to the highest bidder.
A further act of the state, passed in May, 1862, in relation to
suits of this character, provides for service of process by
publication in a newspaper, as well as by posting, and authorizes
the court, in enforcing the lien for taxes, to exercise
Page 80 U. S. 509
all the powers which pertain to a court of equity in the
foreclosure of mortgages, but at the same time it declares that
when the decree of the court contains no special directions as to
the mode of selling,
"no more of the property shall be sold
than is necessary to pay the judgment and costs." [
Footnote 2]
The judgment under which the sale was made for which the deed in
suit was executed to the defendants was rendered in October, 1865,
in an action brought against R. H. Vance, who had transferred his
interest to the plaintiff in March, 1862, and against John Doe,
Richard Roe, and the real estate in controversy. It found that
$113.75 of taxes were due on the property for the year 1864, and
for that sum and the taxed costs, $37.65, and accruing costs, it
directed that a sale of the property, or so much thereof as might
be necessary, should be made in accordance with the statute, and
the proceeds applied to pay the judgment and costs.
The deed of the sheriff did not show a compliance in the sale of
the property with the requirements of the statutes mentioned. It
did not show that the smallest quantity of the property was sold
for which a purchaser would pay the judgment and costs, or that any
less than the whole property was ever offered to bidders, or that
any opportunity was afforded them to take any less than the entire
tract and pay the judgment and costs. The recitals of the deed were
that the sheriff sold the land described to "the highest bidder,"
and for "the largest sum bid for said property," language which
imported that the entire tract was offered in one body, and that
there were more than one bidder, and of course that different sums
were bid for it in this form.
The court instructed the jury to find for the defendant, to
which instruction the plaintiff excepted. Verdict was rendered on
3d of April, 1867; the bill of exceptions was signed and dated on
the following 13th, and judgment on the verdict was entered on the
following 26th, the court not having adjourned until after this
date.
On error brought by the plaintiff, the main question was
Page 80 U. S. 510
whether the departure of the officer from the requirements of
the statute rendered the sale invalid, a minor one -- of practice
-- being to the bill of exceptions.
Page 80 U. S. 511
MR. JUSTICE FIELD having stated the case, delivered the opinion
of the Court as follows:
There are undoubtedly many statutory requisitions, intended for
the guide of officers in the conduct of business devolved upon
them, which do not limit their power or render its exercise in
disregard of the requisitions ineffectual. Such generally are
regulations designed to secure order, system, and dispatch in
proceedings, and by a disregard of which the rights of parties
interested cannot be injuriously affected. Provisions of this
character are not usually regarded as mandatory unless accompanied
by negative words importing that the acts required shall not be
done in any other manner or time than that designated. But when the
requisitions prescribed are intended for the protection of the
citizen and to prevent a sacrifice of his property, and by a
disregard of which his rights might be and generally would be
injuriously affected, they are not directory, but mandatory. They
must be followed or the acts done will be invalid. The power of the
officer in all such cases is limited by the manner and conditions
prescribed for its exercise.
These positions will be found illustrated in numerous cases
scattered through the reports of the courts of England and of this
country. They are cited in Sedgwick's Treatise on Statutory and
Constitutional Law, [
Footnote
3] and in Cooley's Treatise on Constitutional Limitations.
[
Footnote 4]
Tested by them, the sale of the sheriff in the case before us
cannot be upheld. The provision of the statute that he
Page 80 U. S. 512
shall
only sell the smallest quantity of the property
which any purchaser will take and pay the judgment and costs is
intended for the protection of the taxpayer. It is almost the only
security afforded him against the sacrifice of his property in his
absence, even though the assessment be irregular and the tax
illegal. The proceedings in the actions for delinquent taxes are,
as against absent or unknown owners, generally
ex parte,
and judgments usually follow upon the production of the delinquent
list of the county showing an unpaid tax against the property
described. Constructive service of the process in such actions by
posting or publication is all that is required to give the court
jurisdiction, and the delinquent list certified by the county
auditor is made
prima facie evidence to prove the
assessment upon the property, the delinquency, the amount of taxes
due and unpaid, and that all the forms of law in relation to the
assessment and levy of such taxes have been complied with. When the
owner of the property is absent and no appearance is made for him,
this
prima facie evidence is conclusive, and judgment
follows as a matter of course. From the sale which ensues, no
redemption is permitted unless made within six months afterwards,
except in the case of minors and persons laboring under some legal
disability.
It is evident from this brief statement of the character of the
proceedings and of the evidence permitted in these actions for
delinquent taxes that the provision in question is of the utmost
importance to nonresident or absent taxpayers, and that in many
cases it affords the only security they have against a confiscation
of their property under the forms of law.
It is plain to us, upon a consideration of the different
statutes of California upon this subject, that whilst the
legislature of that state intended to prevent by the strictest
proceedings the possibility of any property escaping its
proportional burden of taxation, it also intended by the provision
in question to guard against a wanton sacrifice of the property of
the taxpayer.
In the present case, real property situated near the second
Page 80 U. S. 513
city in size of California, and the capital of the state,
extending one-half a mile along the River Sacramento and running
back one mile, was sold, according to the recitals of the deed, in
one body, for less than one-twentieth of its assessed value. It is
hardly credible that a less portion than the whole of this large
tract would not have been readily accepted and the judgment and
costs, amounting to only one hundred and fifty-five dollars and
forty cents, been paid, had any opportunity to take less than the
entire tract been afforded to purchasers. Be this, however, as it
may, it was incumbent upon the officer to afford such opportunity,
and not to offer the whole tract at once to the highest bidder.
By the laws of Georgia of 1790 and 1791, the collector of taxes
in that state was authorized to sell the land of the delinquent
only on the deficiency of personal estate, and then only so much
thereof as would pay the amount of the taxes due, with costs. In
Stead's Executors v. Course, [
Footnote 5] which came before this Court, it appeared that
a sale was made under these laws of an entire tract of four hundred
and fifty acres, without specifying the amount of taxes actually
due for which the land was liable, and the Court said, Mr. Chief
Justice Marshall delivering its opinion, that the sale ought to
have been of so much of the land as would satisfy the tax in
arrear, and if the whole tract was sold when a smaller part would
have been sufficient, the collector exceeded his authority, and a
plea founded upon the supposed validity of the title conferred by
the sale could not be sustained.
By a law of New Hampshire in force in 1843, it was provided that
so much of the delinquent taxpayer's estate should be sold as would
pay the taxes and incidental charges. In
Ainsworth v.
Dean, [
Footnote 6] which
came before the supreme court of that state, it appeared that a
fifty-acre lot was offered and sold in one body, and the court held
the sale to be void, observing that no regard appeared to have been
paid to the provision mentioned in the statute, and that no reason
was given why the law was not complied with, "if,
Page 80 U. S. 514
indeed, any reason could be considered as sufficient." A similar
decision was made by the Supreme Court of Maine upon a similar
clause in one of the statutes of that state. [
Footnote 7] And numerous analogous adjudications
will be found in the reports. [
Footnote 8] They all proceed on the principle stated by
the Supreme Court of Michigan that "what the law requires to be
done for the protection of the taxpayer is mandatory, and cannot be
regarded as directory merely." [
Footnote 9]
But it is contended that inasmuch as the sale in the present
case was had under a decree of a court, the same presumptions must
be indulged to sustain the action of the sheriff that would be
entertained to uphold ordinary sales made by him under execution,
and that he is not to be held to the same strictness in his
proceedings that he would be if he had acted without the decree,
solely under the statute. And several cases are cited from the
reports of the Supreme Court of California showing that all
reasonable presumptions are indulged in support of sales on
execution, and that such sales are not rendered invalid by reason
of a want of conformity to statutory provisions as to the time,
notice, and in some particulars, manner of the sale. [
Footnote 10]
But the obvious answer to this position is that here there is no
room for presumptions. The officer recites in his deed the manner
in which he sold the property, and from the recitals it appears
that the sale was made in conformity with directions which the
statute, applicable to the case, in effect declares shall not
govern sales upon judgments for delinquent taxes. Presumptions are
not indulged to sustain irregular proceedings of this character
when the irregularity is manifest. Presumptions are indulged to
supply the place of that which is not apparent, not to give a new
character to that which is seen to be defective. The courses
prescribed for the officer in the conduct of sales upon
ordinary
Page 80 U. S. 515
judgments under the act of 1851, and upon judgments for
delinquent taxes under the act of 1861, are entirely unlike, and
usually lead to different results. The general authority of the
officer in judicial sales under the act of 1851, in the exercise of
which he has a large discretion, is limited and defined when
applied to sales under judgments for delinquent taxes, by the
provision declaring that the sheriff in selling the property
assessed "shall only sell the smallest quantity that any purchaser
will take, and pay the judgment and all costs" -- language which
imports a negative upon a sale in any other way. The fact that in
some cases no purchaser at the sale may, perhaps, be willing to
take less than the whole property and pay that amount does not
dispense with the duty of the officer to comply with the law.
It is also contended that the recitals in the deed were not
required, and therefore do not vitiate the deed, but the cases
cited fail to support the position as broadly as here stated. They
only show that a defective or erroneous recital of the execution
under which a sheriff has acted will not vitiate his deed if the
execution be sufficiently identified. Every deed executed under a
power must refer to the power. As an independent instrument of the
holder of the power, it would not convey the interest intended. The
deed of a sheriff forms no exception to the rule. But it is not
essential that the execution or judgment under which he acted
should be set out in full, or that his proceedings on the sale
should be detailed at length. It is sufficient if they be referred
to with convenient certainty, and any misdescription not actually
misleading the grantee would undoubtedly be considered immaterial.
But if the manner in which the power is exercised is recited, it
being a proper matter for recital, then the recital is evidence not
against strangers, but against the grantee and parties claiming
under him. Thus, if a sheriff should refer in his deed to an
execution issued to him, and recite that in obedience to it and the
statute in such case provided he had sold the property to the
highest bidder, it would be presumed that he had done his duty in
the premises, given the proper advertisement, and
Page 80 U. S. 516
made the sale at public auction in the proper manner. But if he
should go farther and recite that he had sold the property not at
public auction, but at a private sale, the deed would be void on
its face, the sale by auction being essential to a valid execution
of the authority of the sheriff. The vendee, by accepting the
conveyance with this solemn declaration of the officer as to the
manner in which his power was exercised, would be estopped from
denying that the fact was as recited. [
Footnote 11]
It is unnecessary to express an opinion whether in any case of a
sale on a judgment for taxes under the special provision of the
statute of California, any presumption can be indulged that the
officer had complied with its directions when the fact does not
affirmatively appear. It is sufficient that the recitals in his
deed of what he did with respect to the sale under consideration
show that these directions were disregarded by him in that case. It
may also be added that the return of the officer corresponds with
these recitals.
The objection to the bill of exceptions that it does not purport
to have been tendered and signed during the trial is not tenable.
It shows that the exceptions were taken at the trial, and that is
sufficient. It is dated during the term, and was in fact filed
before the judgment on the verdict was entered.
Judgment reversed and the cause remanded for a new
trial.
[
Footnote 1]
Act to provide revenue for the support of the government of the
state, approved May 17, 1861, § 39, Statutes of California of
1861, p. 432.
[
Footnote 2]
Statutes of 1862, p. 520.
[
Footnote 3]
Pages 368-378.
[
Footnote 4]
Chap. iv, pp. 74-78.
[
Footnote 5]
8 U. S. 4 Cranch
403.
[
Footnote 6]
1 Foster 400.
[
Footnote 7]
Loomis v. Pingree, 43 Me. 311.
[
Footnote 8]
Blackwell on Tax Titles, xv, p. 286.
[
Footnote 9]
Clark v. Crane, 5 Mich. 154.
[
Footnote 10]
San Francisco v. Pixley, 21 Cal. 58;
Blood v.
Light, 38
id. 649;
Hunt v. Loucks, id.,
375.
[
Footnote 11]
Robinson v. Hardcastle, 2 Term 252;
Jackson v.
Robert's Executors, 11 Wendell 427-435;
Den v. Morse,
7 Halsted 331.
MR. JUSTICE MILLER, dissenting.
I do not agree that when the state obtains a judgment on the
taxes due her by regular proceedings in the courts, that the sale
under that judgment is open to all the rigid rules which apply to
tax sales made
ex parte and without the aid of such
judgment. The judgment in this case is not assailed by the Court,
and the sale under it is a
judicial sale, and entitled to
all the presumptions which the law makes in favor of a purchaser at
such a sale.
Page 80 U. S. 517
The law of California, while it required the sheriff to offer
the smallest portion of the land which anyone would take and pay
the judgment and costs, undoubtedly contemplated that if no one
would take any less than the whole of the land and pay the judgment
and costs, that then it should be sold to the highest bidder. If
this were not so, the state could not collect the taxes in half the
cases, because the right of redemption left no inducement to
bidders for a smaller amount than the whole.
It is therefore a fair presumption from the recital in the deed
that although the sheriff sold the land to the highest bidder, it
was because no one would take less than the whole and pay the taxes
and costs. And the recital that is made as well as that which is
omitted are neither of them necessary to the validity of a deed
made in a judicial sale.
