defeat the policy of the law. The statute of Illinois requires the certificate of publication to be recorded,2 and the question has several times been raised upon the circuit, and in the Supreme Court, as to the validity of the proceedings where the clerk has omitted his duty in this respect; but the cases have been determined upon other points, so that it is still an open question in that State. The manifest object of the statute is, to show upon the face of the record the jurisdiction of the court, and to perpetuate the evidence that the sale was duly advertised. It concerns the former owner and the purchaser at the tax sale, and it would seem upon principle, and authority, that such a requirement can in no sense be regarded as merely directory to the clerk; but that it is one of those peremptory provisions which cannot be dispensed with without invalidating the entire proceedings- defeating the jurisdiction of the court, and the power of the collector to sell the land. Ordinarily, no presumption will be indulged in, for the purpose of supplying the omission of proof in relation to the publication of the advertisement. Though in support of an ancient This, however, will be exam

possession, it may be permitted. ined more at large hereafter. But the law is not only well settled, but apparent to every one, that no presumption can be indulged in to supply a defect which appears upon the face of the advertisement. It may be stated as a general rule, that where an advertisement is illegal in any respect, the consent of the owner, having notice of the irregularity, cannot confer authority upon the officer to proceed with the sale. He derives his power from the law and not from the owner of

1 Culver v. Hayden, 1 Vermont, 359; Coit v. Wells, 2 Vermont, 318; Clark v. Tucker, 6 Vermont, 181; Spear v. Ditty, 9 Vermont, 282; Isaacs.v. Shattuck, 12 Vermont, 668; Carpenter v. Sawyer, 17 Vermont, 121; Judevine v. Jackson, 18 Vermont, 470; Langdon v. Poor, 20 Vermont, 13; Taylor v. French, 19 Vermont, 49; Kellogg v. McLaughlin, 8 Ohio, 114.

2 Ante, p. 194, sec. 27.

8 Allen v. Smith, 1 Leigh, 231.

* Farrar v. Eastman, 1 Fairfield, 191; Porter v. Whitney, 1 Greenleaf, 306.

the land and he must strictly conform to all its requisitions.1 The date of the advertisement is prima facie evidence as to the time when it was made and published.2 But where a notice of sale, and the paper itself which contained it, were dated in 1836 instead of 1837, and parol evidence was offered to prove the mistake, the evidence was held incompetent. The reason

ing in support of this decision of the court, has already been given.1

CHAPTER XIII.

OF THE AUTHORITY OF THE OFFICER TO SELL.

THE power of sale does not attach until every prerequisite of the law has been complied with.1 The regularity of the anterior proceedings is the basis upon which it rests. Those proceedings must be completed and perfected, before the authority of the officer to sell the land of the delinquent, can be regarded as consummated. The land must have been duly listed, valued, and taxed the assessment roll placed in the hands of the proper officer, with authority to collect the tax- the tax demanded all collateral remedies for the collection of the tax exhausted the delinquent list returned a judgment rendered where judicial proceedings intervene the necessary precept, warrant, or other authority, delivered to the officer intrusted with the power of sale — and the sale advertised in due form of law before a sale can be made. In a word, every act which can be regarded as a condition precedent to a valid sale, must precede the execution of the power in question; otherwise, there is no authority to sell, and the whole proceeding will be treated as a nullity."

Whether a special authority, directly commanding a sale of the lands embraced in the delinquent list, is essential, where all of the previous proceedings are regular, depends upon the peculiar legislation of each State. In some instances the officer

1 Minor v. Natchez, 4 Smedes & Marshall, 627, 628.

2 Lessee of Holt's heirs v. Hemphill's heirs, 3 Hammond, 232; s. c. 1-4 Ohio Cond. 551; Bishop v. Lovan, 4 B. Monroe, 116; Garrett v. White, 3 Iredell's Eq.

131.

derives his power of sale from the law itself, which is his warrant, commanding him, without the intervention of any other agency, to sell, and fixing the time, place, and manner of sale.1 In others, especially where a judgment is required, a precept or other process is delivered to the officer, which constitutes his authority to sell.2 In others, a simple copy of the delinquent list, duly authenticated, is delivered to the officer, and sometimes there is superadded a command or direction to proceed and sell.

In Illinois, under the acts of 1827 and 1829, lands not listed in the county of their locality, were required to be returned by the county clerk to the auditor of State, on or before July 15, annually, and in case the taxes remained unpaid for a limited time, the auditor was authorized to advertise and sell the land. Until this list is returned by the clerk to the auditor, his power of sale does not attach.3 Under the law of 1833, which transferred the sale from the auditor to the county clerk, the authority of the clerk to sell depended upon the delivery to him of a list of delinquents by the auditor:1

The law of North Carolina required the owner to list his land with the justice of the peace in his precinct; if he neglected to do so, the justice was authorized to appoint a freeholder to value the land on oath, and make a return thereof to the justice; which return the justice was directed to add to his list, and transmit the whole to the clerk of the county court. In case of failure by the owner and justice, the sheriff was required to list the land, and summon a freeholder to value it, in which case the freeholder was required to send a transcript of the list and valuation to the clerk of the county court, before the next succeeding term of that court, and the clerk was directed to incorporate that with the list returned by the justice; the tax lists thus returned were directed to be recorded by the clerk.

1 McCoy v. Turk, 1 Pennsylvania, 499.

2 Hinman v. Pope, 1 Gilman, 131; Lessee of Wilkins v. Huse, 9 Ohio, 154.

3 Revised Laws 1833, p. 524, sec. 3; Messenger v. Germain, 1 Gilman, 631. 4 Revised Laws 1833, p. 528, sec. 1;

"These records, it

In Pentland v. Stewart,1 the court say: seems to us, are in the nature of judgments against each individual on the lists, for the sums respectively set against their names." The statute further provided, that within thirty days after the term of the court to which the lists were returned, the clerk should make out and deliver to the sheriff a copy of the lists, upon the receipt of which the latter was directed to proceed and collect the tax by demand, seizure of goods, or sale of the land. In commenting upon this requirement, the court, in the case last cited, remark: "The certified copies of the tax lists, delivered by the clerk to the sheriff, are, in law, his warrant of distress or execution against, the property of each individual, for the satisfaction of the money due on them." The court, therefore, held, that as "in ordinary cases, where a party claims under a sheriff, he is compelled to produce a judgment and execution against the debtor, as well as the sheriff's deed," so in deducing title under a tax sale, the purchaser must produce the record of the lists in lieu of a judgment, and the copy of it delivered to the sheriff as a substitute for an execution, otherwise, the sheriff has no power to sell and convey the land.

The statute of Ohio, of March 14, 1831, required the auditor of State to transmit to the county auditor a list of all lands which had been forfeited to the State for the non-payment of taxes assessed thereon, said list to be certified and signed by the auditor of State, and to have thereto affixed his seal of office, "which list shall set forth the name or names of the person or persons to whom such lands stand charged with taxes, the amount of taxes due thereon for each year, and for what years ;" and the law further provided, that unless the taxes due upon the lands embraced in the list were paid by October 15, the, county auditor should advertise and sell the same.

In Hannel v. Smith,2 the evidence offered, to show that such list was transmitted to the county auditor, was a letter dated

14 Devereux & Battle, 386.

2 15 Ohio, 134.