low the law, and cannot supply any defect which would render a sale and conveyance void at law, for non-conformity with the statute, is peculiarly applicable to tax sales and conveyances, because of the fact, that they are regarded as titles stricti juris, derived under a naked statute authority. No instance is known of an attempt to make a tax title good by an appeal to a court of equity. If the reader desires to pursue this question further, he is referred to the authorities cited in the margin.1

1 1 Story's Eq. secs. 96, 177, 178; Fonb. Eq. B. 1, C. 1, sec. 7; Earl of Darlington v. Pulteney, Cowper, 267.

CHAPTER XXXV.

OF THE MODE OF PLEADING A TAX TITLE.

THE rules which govern the mode of pleading a title derived under a tax sale, will, of course, depend upon the form of action, the character of the defence, or nature of the controversy in which the question arises. In real actions, and actions of ejectment, brought by the party who claims the land under such a title, and in trespass quare clausum fregit, and actions upon the case in tort, instituted by him for an injury to the possession or inheritance, the general allegation of title will be sufficient, as in ordinary cases. In trespass, and cases prosecuted against him by the former owner, his title may be given in evidence under the general issue. But where he seeks, by mandamus, or bill in chancery, to coerce the execution of a tax deed, by the officer to whom the law has intrusted the power of making it; where he relies upon his title as a defence to an action at law, or suit in chancery; and in all cases, where a party to a suit founds his cause of action or ground of defence upon the existence of an outstanding tax title in a third person, the title must be specially alleged in the pleading of the party. This proposition will not be denied. But how shall this special allegation be framed? What particularity and certainty is required by the rules of pleading in such cases? Is the general allegation that the proceedings were "in due form of law," "in conformity with all the provisions of the statute in such case made and provided," "regular," or "legal,” sufficient, or must the pleader set forth the proceedings under which the sale of the land took place, so that the court can see that the proceedings were in conformity with the requirements

of law? Pleading is defined to be, "the statement of the facts which constitute a cause of action or ground of defence." Now, what facts constitute the cause of action or ground of defence, where a tax title is relied upon? Clearly, all of those which the law has declared shall exist, in order to consummate a complete and perfect title. Each independent act of the officers who have any thing to do with the proceedings, from the listing of the land for taxation, until the title is consummated by the execution and delivery of a deed, constitutes an essential link in the chain of title, and must be specially averred in the pleading. The rule requires that all of the facts upon which the legal sufficiency of the cause of action or ground of defence depends, shall be stated. The exceptions to this rule are, that facts of which the court will ex officio take notice, facts which the law presumes, and facts which come more properly from the opposite party, as being peculiarly within his knowledge, need not be stated in his pleading. Tested by the rule and exceptions, how stands the case with regard to the facts necessary to be stated in pleading a tax title? Courts will take judicial notice of the existence of other superior courts, the extent of their jurisdiction, and the course of proceedings therein; but they will not take notice of the jurisdiction of inferior courts, or the course of their proceedings. The pleader must aver and set forth such facts as will show that they had jurisdiction, and that their proceedings were regular; nor will the court take judicial notice of the authority of an officer to act in a given case, but the facts which establish the authority must be averred in pleading. The courts, as has already been shown, raise no presumption in behalf of an officer intrusted with the power to sell land for the non-payment of taxes, to cover any radical defect in his proceedings; it is not a case for presuming that, as a public officer, he has performed his duty by pursuing his authority; therefore, the facts upon. which his authority depends must be set forth in pleading. Nor do the facts upon which the validity of the officer's proceedings depends, lie more properly within the knowledge of the former owner, for we have seen that these facts should be

examined by the purchaser, before he buys at a tax sale, and the evidence of them should be preserved by him as a necessary muniment of his title; therefore, all of these facts should be averred.

There is another rule of proceeding which requires," that facts only are to be stated, and not arguments or inférences, or matter of law." An averment that the proceedings of the officer were "regular," "legal," &c., is a mere legal conclusion, without giving the facts from which that conclusion is drawn. Therefore, in all such cases, the pleader must show, with reasonable certainty, the particular facts upon which the regularity or legality of the proceedings depend, that the court may see whether the requirements of the law have been complied with or not. For instance, where a submission requires an award to be made in writing, under the hands and seals of the arbitrators, by a particular day, it is not sufficient in pleading the award, to allege, simply, that the arbitrators " duly made their award." So, where a sheriff is sued in trespass, for taking, carrying away, and disposing of personal property, and he justifies under an execution, a general averment, that by virtue of a "lawful execution" he seized the goods, &c., is insufficient, he must set it out, or so describe it in his plea, that the court can determine whether or not the writ is a lawful one. So, where an officer is sued for false imprisonment, it is not sufficient, in his justification, to state that he arrested and imprisoned the plaintiff under a "legal warrant," &c. So, where the proceedings of an inferior court of limited jurisdiction, are relied upon as a cause of action or ground of defence, it is not sufficient for the pleader to allege, that the proceedings were had before "a court of competent jurisdiction and authority," but he must aver and set forth in his pleading such facts as will show upon the record, that the court had jurisdiction over the person, subject-matter, &c. So, where a special demand is necessary, an averment that a demand was " duly made," is insufficient, but the pleader must show by and to whom the same was made, and the time and place of making it, in order that the court may judge. This doctrine is not opposed to

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Lord Coke's rule, that "circumstances implied by law, need not be stated." That rule simply amounts to this: In pleading a deed, it is unnecessary to allege that it was in writing, sealed and delivered; the term, deed, ex vi termini, means a writing, sealed and delivered, therefore, if the pleader alleges that "the defendant, on, &c., at, &c., made his certain deed of that date, &c.," the law implies that it was in writing, sealed and delivered. If a feoffment be pleaded, livery of seizin need not be alleged, for it is implied in the word "enfeoffed." In pleading the assignment of dower in land, it is not necessary to say, that it was by metes and bounds, for it shall be intended a lawful assignment. There is no analogy between this class of cases and tax titles. If a tax deed was, by law, conclusive, or even prima facie evidence that the law had been complied with, then it would be sufficient to aver generally, the existence of a tax deed in due form of law," for the law would imply that every preliminary fact existed, which was necessary to its validity. The words, "tax title," would then become the technical name of the party's right to an estate in fee, used only for the purpose of designating the source of the title. But it has been shown that a tax deed is not, according to the principles of common law, evidence that the preliminaries have been complied with, that no intendments are indulged in for the purpose of upholding the tax sale, that the law must be strictly complied with, in all of its requirements, and that the onus lies upon the party claiming under such sale, to show a compliance. The plea of performance of a condition precedent, is somewhat analogous to a pleading which sets forth a tax sale as a cause of action or ground of defence; and the rule in such case is, that the performance must be shown to have been according to the intent of the contract; an exact performance must also be stated; and performance ought to be shown with such certainty, that the court may judge whether the intent of the covenant has been duly fulfilled. There is another rule of pleading which requires this degree of certainty in pleading a tax sale. Where a party claims a right unknown to the common law, but which depends entirely upon a statute for its