to extend any further. Neither does the certificate of the townclerk state that he received of the collector the newspapers themselves, in which the publications were made, and that he made the records of the advertisements from the papers themselves. We think the title under the vendue defective for these reasons."

In Hannel v. Smith, where the auditor of State was required "to transmit to the county auditor lists of land which have been forfeited, &c., said lists to be certified and signed by the auditor of State, and to have thereto affixed his seal of office," and it appeared that the list in question was signed "John Brough, auditor of State, by J. B. Thomas," and the seal of the auditor's office was not attached to the list, it was held void. By the court: "This was not such a verification of the list as the law required. It was not even signed by the auditor, but by J. B. Thomas. And who is J. B. Thomas? Plaintiff's counsel answer, the deputy of the auditor of State; and the auditor of State signed by his deputy. By what authority? It is replied, by the authority which every public officer has to act by deputy. I know that some public officers may act by deputy, such as sheriffs' clerks, &c., but I have yet to learn that the auditor of the State of Ohio can act by any other authority than the one prescribed by law; that is, the chief clerk in his office. Thomas, however, does not sign as deputy nor as chief clerk. This instrument is not only without the signature of the auditor, but it is not verified by his official seal, nor is it therein certified that the list to which it is attached is correct. It is defective, and would no more authorize the county auditor to sell the land contained in the list, than a letter written by the clerk of a court, and directed to the sheriff, informing him that a judgment had been rendered in a certain cause, would authorize that sheriff to levy upon and sell the lands of a judgment debtor." In Taylor v. French, it was the duty of the collector to return his proceedings, verified by his official signature. The facts were, that two adjournments of

1 15 Ohio, 134.

the sale had taken place, which was attested by his signature, but no other part of the proceedings were thus verified. The return was held void. By the court: "The collector having simply signed his name to the two adjournments, it cannot be a signing of the anterior proceedings. It in no way professed to be so. This objection is fatal to validity of the vendue."

On the other hand, where the official character of the act does, with reasonable certainty, appear upon the face of the document, slight variances and omissions will not destroy its validity. Thus, in Isaacs v. Wiley, where the record of the advertisement showed the name of Luther W. Brown as collector, whereas Luther H. was appointed to that office, it was held sufficient. By the court: "In the present case, in the absence of proof that two persons bearing the same name, and distinguished by these initial letters, reside in the same town, it certainly does require a very great stretch of credulity to admit the construction that one person was appointed to this office, and that another intruded himself into his place, and assumed the burden of his duties. We think it more rational to treat the names as being the same, but capriciously varied to suit the taste or whim of the recording officer."

In Sheldon v. Coates,2 James Hillman was sheriff of Butler county, and ex officio collector of taxes. The certificate of sale signed by him was in his capacity of collector, and it was held valid. By the court: "It is a general rule, in sales by public officers, that where there is a sufficient power to warrant a sale, a slight variance or omission will not be held to be material.3 But this, it is said, is a sale for taxes, where principles stricti juris are to be applied. To this argument it may be answered, that no substantial variance from the provisions of the statute, so far as the signature of Hillman to the certificate of sale is concerned, is by us perceived, &c. Hillman, being by the act made collector, by virtue of his office as sheriff, it seems to us

1 12 Vermont, 674.

210 Ohio, 278.

3 See 5 Cowen, 530.

there can be no objection to the certificate, whether signed by him in the one or the other capacity. Pro hac vice, sheriff and collector are synonymous terms." But it has been shown, that where the same person holds the same office, and the law requires him to act in each of his official characters in the course of a tax proceeding, and he gives the wrong designation of office in authenticating an act, this stands upon the same principle as if he had added neither official designation.

In Farrar v. Eastman,2 where the law provided, that if any proprietor of common lands should 'neglect to pay the tax assessed upon his share, the proprietors were authorized to sell and convey the interest of the delinquent, one of their number being delinquent, they sold his share, and afterwards voted that "the collector be empowered to give a deed." John Knox was the collector of the proprietors, and made the deed in question. It was held valid. By the court: "If a deed, vote, or other transaction, be susceptible of a construction consistent with law, and with a rightful authority in the party or parties granting, voting or acting, that construction should prevail. 'It is a general rule, that whensoever the words of a deed, or of the parties without deed, may have a double intendment, and the one standeth with law and right, and the other is wrongful and against law, the intendment which standeth with the law shall be taken.' It was competent for the proprietors to appoint the same person to sell and convey, and a designation of the person as a committee to convey by the name of his office of collector, is sufficiently certain. The incumbent of the office at the time is intended. The collector was John Knox - the vote designates the collector-John Knox, then, was intended."

1 Ante, p. 348.

25 Greenleaf, 345.

8 Coke, Lit. 42.

CHAPTER XIX.

OF THE CONFIRMATION OF THE SALE.

IN some of the States, the law requires the consent, approbation, or confirmation of the sale and conveyance, by some court of record. Where such is the requisition, it must be complied with, or no title vests in the purchaser. It is a general rule of law, that where the consent of any third person is required to the execution of a private power, that, like every other condition, must be strictly performed. And when the consent of a third person is required to a deed, in order to its validity, it can have no operation until that consent is given. There are numerous treaties between the United States and Indian tribes, whereby the latter have ceded their territorial rights to the former, reserving a specific quantity of the granted lands in favor of particular Indians or half-breeds. Such was the case with the Winnebago treaty of 1829. In that treaty it was provided, that the reservee should not sell and convey the land without the consent and approbation of the President of the United States. Unless such consent is given by the President, the title of the Indian reservee does not pass. In that case the object of the provision was to guard the Indian against fraud and imposition; and it is the practice of the Indian Department, not to submit a deed, executed by an Indian, to the President for his approval, until it satisfactorily appears that the land brought its fair market value, and that the consideration has

1 Sugden on Powers, 263, 265; Hawkins v. Kemp, 3 East, 410; 10 Vesey,

25 Wendell, 532.

been paid or secured.1 order of a court, requires the approval or confirmation of the sale, it is void without it.2 The same principle is more strongly applicable to a tax sale and deed, when a confirmation of them is required by law. The Ohio statute of January 30, 1822, requires a confirmation and approval of the sale, by the court of common pleas of the county where the land lies, and the entry of an order, directing the execution and delivery of a deed to the purchaser. In Northorp v. Devore, it was held that an order of confirmation, which misrecited the day of sale, was a nullity. In no case will the confirmation aid a void title.5

Where an act of the legislature, or

A statute of Arkansas, passed November 18, 1833,6 provided "the purchaser, or his heirs or legal representatives, may at any time after the expiration of the term allowed for such redemption, publish a notice six weeks in succession, in some newspaper printed at the city of Little Rock, calling on all persons who can set up any right to the land so purchased to show cause at the first term of the circuit court, which may be held in the county in which such lands are situated, six months after the publication of such notice, why the sale so made should not be confirmed." In Black v. Percifield, the defendant in error filed his petition, setting forth a purchase at a tax sale, and praying a confirmation. The plaintiff in error filed her answer, setting forth that she was in possession of the land, and pointing out irregularities in the sale. The answer was held' insufficient. By the court: "In her plea, by way of answer, she does not aver how, or in what manner she came by the possession, or under whom she holds, or whether her possession is adverse to the petitioner or not. The duty devolves upon her to

19 Peters, 711; Opinions of the Attorneys-General, ed. 1852, vol. 2, pp. 465, 574, 631; vol. 3, pp. 209, 259; vol. 4, p. 529.

2 Williamson v. Berry, 8 Howard, U. S. 495, 496; Young v. Keogh, 11 Illinois, 642; Rea v. McEachron, 13 Wendell, 465; Curtis v. Norton, 1 Ohio, 336.

8 Wilkins v. Huse, 9 Ohio, 154.

411 Ohio, 359.

Barger v. Jackson, 9 Ohio, 163.

6 See Digest of Arkansas, Statutes of 1858, ch. 170, p. 1052.

71 Arkansas, 472.