CHAPTER III.

OF THE ONUS PROBANDI.

IN powers of this nature, a series of acts, preliminary in their character, are required by law to precede the execution of the power. Each and every step, from the listing of the land for taxation, to the consummation of the title by the delivery of a deed to the purchaser, is a separate and independent fact. All of these facts, from the beginning to the end of the proceeding, must exist; and if any material link in the chain of title be wanting, the whole falls to the ground for want of sufficient authority to support it.1

The party claiming under the power, is chargeable with notice of every irregularity in the proceedings of the officers. He purchases at his peril, the maxim "caveat emptor," being rigidly applied to him.2 The reasons are obvious. The law imputes to every purchaser, knowledge of all facts appearing at the time of his purchase, upon the muniments of title, which it was necessary for him to inspect in order to ascertain the sufficiency of it. More especially is this doctrine applicable to the purchaser at a tax sale. For knowing the land to have been sold under color of an authority given by law to a

1 Blakeney v. Ferguson, 3-Eng. 277; Brown v. Veazie, 25 Me. 362; Doughty v. Hope, 3 Denio, 595; Varick v. Tallman, 2 Barb. 114, 115; Fitch v. Casey, 2 G. Greene (Iowa), 300; Polk v. Rose, 25 Md. 153.

2 Lessee of Holt's Heirs v. Hemphill's Heirs, 3 Ham. 232; s. c. 1-4 Cond. Ohio, 551; Denning v. Smith, 3 Johns. Ch. 344; Stead's Executors v. Course, 4 Cranch, 403; s. c. 2 Pet. Cond. 151; Yancy v. Hopkins, 1 Munf. 431; Games v. Stiles, 14 Pet. 322; Wright, 53.

3 Battemore v. White, 2 Gill & J. 444.

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public officer, who is not the proprietor thereof, he is
bound to inquire and take notice whether that officer, *66
and all others whose agency is required by the law in
the conduct of the proceedings, have proceeded with regularity
in the discharge of their duty. If the proceedings are not in
conformity with the law, the fact is as well known to the pur-
chaser as it was to the officer. The law, at least, presumes it
to be so. The statute was not passed simply to inform the
officer of his duty in the premises, and limit him as to the
mode of executing the power, but it was also intended to give
to the purchaser full information of the terms upon which a
title could be acquired to land, sold at public vendue, for the
non-payment of taxes in arrear upon it. It was meant to put
bidders at a tax sale upon inquiry, whether or not the land was
offered for sale according to law. If they do not examine, but
buy against the plain and imperative provisions of the statute,
they do so at their own risk; and it will be presumed against
them that they knew that the deeds given under such circum-
stances, were made in violation of official duty and of the law.2
The purchaser claims his title under the authority of a public
law, and is, therefore, bound to take notice of all its require-
ments; the authority of the officer is special and limited, the
law is his warrant of attorney, and the buyer must see to it,
that the terms prescribed by the legislature—the creator of the
power-have been pursued by the agent. We have seen, that
the requisitions of this class of laws must be strictly pursued,
and no purchaser is blameless who buys without seeing that
they have been so.3 "A special authority must be strictly pur-
sued, and every purchaser is presumed to know that special
authority in all cases where it is conferred and limited by
statute." There is no great hardship in this. Experience
and observation render it notorious, that the amount paid

1 Yancy v. Hopkins, 1 Munf. 431. [He is bound to prove that the person described in the deed as high sheriff, was such. Hobbs v. Shumates, 11 Grat. 516.]

2 Moore v. Brown, 11 How. (U. S.) 414.

& Allen v. Smith, 1 Leigh, 231.

4 Chancellor Kent in Denning v. Smith, 3 Johns. Ch. 344.

by purchasers at tax * sales, is uniformly trifling in comparison with the value of the property sold. "Acres for cents," is the maxim, and cupidity the ruling passion, of the speculators who attend tax sales.

Taxes ought to be paid, and that promptly. In the language of Judge Scates: "The government must have revenue, and it must be collected from all; it must be enforced from the unwilling and negligent by disposing of their property to those who are willing to advance the money." But it must be remembered that all owners, whose names are perpetuated upon the "list," are not wilfully or perversely "delinquent." Oversight, accident, and misfortune, the dishonesty of agents, the neglect of the guardians of infants, and the husbands of women owning separate estates, often interfere to prevent the seasonable payment of taxes. In such cases a sale takes place while the owner is unconscious of the wrong. Shall the innocent owner be protected under these circumstances? Reasonable judges will answer the question affirmatively. How protected? Not by an immunity from his duty to the government, but by requiring a rigid compliance with the prerequisites of the law. The object of the law is, to raise a revenue with the least possible sacrifice to the citizen.2 Every member of society is presumed to have assented to the public law by which his right of property is subjected to the dominion of strangers. The manner in which this power is to be exercised is specified in the law. The same law which creates or confers the power, bridles its execution. You may take my property to pay my debts, but you must ascertain that debt by judgment, and a sheriff must execute the power. You may take my land to build a railroad, but you must pay me the value of it. You may sell my land for taxes assessed upon it, but you must do it in the manner prescribed by the law. The citizen never assents to the power, unless the safeguards attached to its exercise are strictly observed. The delinquent, when his title is

sought to be divested by a tax sale, has a right to say to *68 the * purchaser, "True, I have been negligent in the per

1 Hinman v. Pope, 1 Gilm. 141.

2 Jackson v. Esty, 7 Wend. 148.

formance of my duty,-a cause of forfeiture has thereby arisen,—but the officer has been equally negligent; you also, in not inquiring into the regularity of the proceedings before purchasing; my title has not been legally divested, and I shall therefore insist upon my right according to the law of the land."

1

To use the language of Chancellor Kent: "Sales of real property by public officers, of one description or another, have become so frequent, and have excited such active cupidity, and such a spirit of speculation, that there is very great danger of injustice, unless we support strictly the checks and guards provided by law against abuse." It is far better, when an irregularity occurs in the proceedings, that the purchaser should lose the inconsiderable amount of his bid, than that the owner should forfeit a valuable estate. The purchaser has his remedy. If the land was not subject to taxation, or the taxes had been paid before the sale, he must look to the State for that relief which such a case may require.2 If the officers have failed in the performance of any duty enjoined upon them by law, they must respond in damages to the purchaser, who has sustained an injury by their neglect. The purchaser's title is one of strict right. Positive law is the foundation of it. He deserves no indulgence from the courts. There should be no leaning in his favor. On the contrary, it is the duty of courts of justice to examine such sales narrowly, and if they do not appear to be strictly conformable to the law, to pass the merited censure upon them.4 In one case where the counsel, contesting the validity of a tax sale, raised many objections, the court in reviewing them and after stating the degree of strictness which the law required in such cases, say, "The counsel for the defendant in this case may, therefore, be excusable, if not commendable, for the astuteness and *69 searching manner in which he has scrutinized the doings. of these officers in the instance before us." 5

1 Denning v. Smith, 3 Johns. Ch. 344. 2 Jackson v. Morse, 18 Johns. 442. Sumner v. Sherman, 13 Vt. 613.

4 Wilson v. Bell, 7 Leigh, 22; Cox v. Grant, 1 Yeates, 164; Counsel for the Plaintiff arguendo in Thames Manufacturing Company v. Lathrop, 7 Conn. 550.

5 Brown v. Veazie, 25 Me. 362. In McMillan v. Robbins, 5 Ham. 28, Judge Hitchcock says, "I am aware that it is common to complain of tax laws, and

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* Upon whom shall the burden of proof rest under such circumstances? Shall the purchaser at the tax sale, or those claiming under him, be required to etablish affirmatively,

there is, perhaps, no part of legislation which is more difficult to perform satisfactorily, or in such a manner as to do equal and exact justice to all, than to frame a revenue system. We are aware, too, that courts have been astute to find defects in tax sales; so much so, that, in this State at least, it has become the general, if not the universal opinion, that a title derived under such a sale cannot be supported. Whether courts have done wrong in this, it is not for us to say. The consequences, however, as members of the community, we cannot but regard. That it has a direct tendency to encourage those who dislike to pay a tax, in the neglect of the performance of this duty, there can be no doubt."

In the dissent of Judge Scates to the decision of the Supreme Court in Hinman v. Pope, 1 Gilm. 141, 142, he remarks: The courts have adopted a rule of strict construction in these cases of naked powers, requiring a party to show a strict compliance with every prerequisite of law. This vigilance of the law upon naked powers, is a substitute for that vigilance which interest always prompts in those who execute a power coupled with an interest. But technical rules should have their limit subservient to the public good. The government must have revenue, and it must be collected from all; it must be enforced from the unwilling and negligent by disposing of their property to those who are willing to advance the money. But it will be impossible to do so if technical rules are applied to defeat their rights acquired under sales, upon all and every plausible pretext of error that ingenuity can, from time to time, suggest. The grounds of objection are made plausible in these cases, by the great disproportion between the consideration paid and the value of the property purchased. If the consideration was full and adequate, these objections would frequently wear the aspect of a dishonest resistance of right. If the public confidence is destroyed in ever acquiring a title free from technical objection, the State will be unable to collect her dues, as no one will advance, where the blunders of ignorance and negligence in the executive officers, in not complying literally with the law, will be allowed to defeat their rights. Legislation can hardly keep pace with ingenuity, so as to remove or anticipate the grounds of objection. I should allow all substantial departures from the law as valid objections."

In the case of Atkins v. Hinman, 2 Gilm. 452, 453, the late Chief Justice Treat, now Judge of the United States Court, in the Southern District of Illinois, after overruling various objections taken to a tax title, thus alludes to the subject of this digression: "In dismissing the various objections taken to these proceedings, I cannot forbear the remark that they are purely technical. The duty of every citizen to contribute, in proportion to the value of his estate, towards the support of the government which protects him in the enjoyment of his rights, must be acknowledged by all. The present revenue laws are liberal in their character; the rate of taxation is uniform and reasonable. The tax-payer can readily ascertain the amount he is required to pay. He has several months in which to make payment, after his property is assessed. If he omit to pay, and his land is sold, he has still the right to redeem in two years from the sale. If, after all this delay, he suffers his title to be transferred to the purchaser, the loss must be attributed