who had any thing to do with the proceedings, and the onus probandi * is thrown upon the party contesting the * 211 validity of the tax title.1

Ninth. Section forty-three declares, that "no person shall be permitted to question the title acquired by a sheriff's deed, without first showing that he or she, or the person under whom he or she claims title, had title to the land at the time of the sale, or that the title was obtained from the United States or this State after the sale, and that all taxes due upon the land have been paid by such person, or the person under whom he claims title as aforesaid." In construing this section, it has been decided substantially, 1. That any one may attack the validity of the judgment, precept, and deed, without putting himself "in position," as it is called. 2. But if, after the person claiming under the tax title, has made out a primâ facie case by showing a valid judgment, precept, and deed, the adverse party desires to question the prima facie title thus established, he must prove title to the land at the time of the sale, and the payment of taxes as required by this section.2 Proof that the party contesting the tax sale was in possession, claiming title to the land at the time of the sale, is sufficient evidence of title within the meaning of this statute. And if it appears that no taxes are due to the State upon the land, this satisfies the other requirement of the statute, although the taxes were not paid by the party who desires to contest the validity of the tax title.1

Tenth. Where the party resisting the validity of the tax sale has thus put himself" in position," he may defeat the sale by establishing these defences: 1. That the land was not subject to taxation at the date of the sale; 5 2. That the

1 Manly v. Gibson, 14 Ill. 136; Lusk v. Harber, 3 Gilm. 158; Hinman v. Pope, 1 Gilm. 131; Atkins v. Hinman, 2 Gilm. 437.

2 Hinman v. Pope, 1 Gilm. 138; Bestor v. Powell, 2 Gilm. 119; Atkins v. Hinman, 2 Gilm. 453, 454; Lusk v. Harber, Gilm. 158; Curry v. Hinman, 11 Ill. 420; Spellman v. Curtenius, 12 Ill. 409; Hope v. Sawyer, 14 Ill. 254.

3 Lusk v. Harber, 3 Gilm. 158; Curry v. Hinman, 11 Ill. 420.

4 Curry v. Hinman, 11 Ill. 420; Hope v. Sawyer, 14 Ill. 254. 5 Sec. 43.

*

* 212 taxes, for which the land was sold, had been paid;1 3. That the land was not listed and assessed in the time and manner required by law; 2 4. That the sale had been redeemed from; 5. That the sale was made on a day different from that designated in the notice, or the law; and, 6. The party may go behind the judgment and show that any of the material prerequisites of the law have not been complied with. (a) There are, doubtless, other defences which may be successfully made to a tax sale under this statute, but no decisions have settled them, and it is unnecessary to anticipate the action of the courts. It is proper to add in conclusion, that the laws of Illinois, now in force, are substantially like the act of 1839, and their construction is governed by the same principles laid down in this chapter.

1 Sec. 43; Curry v. Hinman, 11 Ill. 420. But after decree of foreclosure, under Iowa statute, it is too late to show that tax was paid. Gaylord v. Scarff, 6 Clarke (Iowa), 179.

2 Marsh v. Chesnut, 14 Ill. 223; Billings v. Detten, 15 Ill. 218.

3 Sec. 43; Chapin v. Curtenius, 15 Ill. 432.

4 Hope v. Sawyer, 14 Ill. 224; Polk v. Hill, 15 Ill. 130.

5 Lusk v. Harber, 3 Gilm. 161, 162.

(a) Judgment rendered at a date when the time for payment of tax has not fully expired, is invalid. Williams v. Gleason, 5 Clarke (Iowa), 284.

A judgment cannot be rendered for taxes, a part of which are shown by the record to be illegal, unless tax is so levied as to show which part the land is legally liable to. Campbell v. State, 41 Ill. 454.

CHAPTER XII.

OF THE ADVERTISEMENT OF THE TIME AND PLACE OF SALE.

THE maxim is familiar, "That notice is of the essence of things required to be done." And it is a fundamental rule, that in all judicial, or quasi judicial proceedings, affecting the rights of the citizen, he shall have notice and an opportunity of a hearing before the rendition of any judgment, decree, or order against him. In other words, he must be warned, and have his day in court. And in the application of this rule, it is immaterial whether the tribunal exercising authority over his rights proceeds regularly or summarily according to the due course and process of the common law or in pursuance of a general or special statute. It would be a violation of one of the first principles of justice and judicial proceedings, to try, and decide upon, the rights of an individual, civilly or criminally, without notice, and consequently an opportunity of defending himself.

So strict is the rule, that where a proceeding of a judicial nature is authorized, and the statute is silent as to notice, the adjudication will be void unless notice is given to the party in interest.2 Where the proceeding is before a special tribunal, exercising a summary authority, contrary to the course of proceeding in the common-law courts, the evidence that due notice was given must indisputably appear upon

1 1 Burr, 447; 3 Denio, 595.

* 214

2 Chase v. Hathaway, 14 Mass. 222; Eddy v. People, 15 Ill. 386: Holliday v. Swailes, 1 Scam. 515; Shumway v. Shumway, 2 Vt. 339; Smith v. Burlingame, 4 Mason, 121; Corliss v. Corliss, 8 Vt. 389; Kinderhook v. Claw, 15 Johns. 537; Brown v. Wheeler, 3 Ala. 287; State Bank v. Marsh, 2 Eng. 390; Owners v. Mayor of Albany, 15 Wend. 374. See Ireland v. Rochester, 51 Barb. 414.

the face of the record. Even a recital of the notice is insufficient; it must be set forth at large in the record, that it may be seen on inspection whether the notice was legal and sufficient.1 If such is the law of notice in judicial proceedings, it applies with much greater force to the exercise of ministerial power, where the act is not only summary, but the notice merely constructive; where the proceeding is in the nature of a judgment, and terminates in the divestiture of a title to real

estate.

The law in relation to sheriffs' sales would seem to be an exception to this principle. An advertisement of the time and place of sale is usually required, but in this respect the statute is regarded as merely directory to the officer. Without doubt, it is his duty to comply with its directions; and for a breach of his duty, he would be responsible to the injured party, but such a breach of duty is not in itself sufficient to avoid the sale. In such cases, the sheriff derives his authority from the judgment and execution, and not from the advertisement. Besides, the debtor, having been regularly brought into court by the service of process, is bound to take notice of all the subsequent proceedings in the cause, particularly in reference to the execution, which, to use the language of Lord Coke, is the "life of the law." 2 But even in this case, if the purchaser is aware of the fact that the officer has failed to advertise the sale, in conformity with the requirements of the law, the sale may be avoided. This would amount to a constructive fraud. It is only bona fide purchasers who are protected in this class of cases, and not those who have actual notice of a substantial irregularity. Such is the law of notice in sheriffs', and indeed, in all sales made under the authority of a judgment, order, or decree.

But it seems to have been an universal principle in *215 the legislation of this country relative to compulsory

*

1 Rex v. Croke, 1 Cowp. 26; Cheatham v. Howell, 6 Yerg. 311; Gwin v. Van Zant, 7 Yerg. 143.

2 Minor v. Natchez, 4 Smedes & M. 602; s. c. 10 Smedes & M. 246; 2 Bibb, 401; 3 Ohio, 187; 9 Ohio, 19.

3 Hayden v. Dunlap, 3 Bibb, 216; Webber v. Cox, 6 Mon. 110.

taxation, that a notice of the time and place of selling the land of a delinquent, must be given by publication in one or more newspapers of the State or county in which the proceeding takes place, by recording the list, or posting notifications, in some public place. There is less uniformity, however, in the details of the various statutes, regulating the form and contents of the notice, the time of publication, the number of newspapers in which it shall be inserted, the number of issues which shall contain it, the circulation of the paper, and the mode of proving and perpetuating the fact of publication.

The

It may, however, be laid down as a general rule, that the advertisement of the sale, in the time and manner prescribed by the law, is a prerequisite to the validity of a tax title. officer derives his power of sale, in part, from the advertisement of it. Power is conferred upon him to be exercised on certain contingencies, and these contingencies must have happened, and the conditions on which he can act must have been performed, before his act can be valid. His power does not attach until every prerequisite of the law has been complied with.

One object of advertising tax sales is to give full notice to the proprietor, and furnish him with every facility for the voluntary payment of the tax, before a resort is had to coercive means; and another, equally beneficial to him, is to create competition at the sale, and prevent his entire estate from being sacrificed for a trifling sum compared with its real value, when the sale of a less quantity might have been made, if a spirited competition had existed. The longer the notice is published, the wider the circulation of the paper, and the more full the information conveyed in the advertisement, so much greater will be the competition at the biddings. It follows that any neglect of the officer, which deprives the owner and bidders of that full information which the law intended to give them, is fatal to the validity of the tax sale. These principles are fully sustained by the authorities.1

Parker v. Rule's Lessee, 9 Cranch, 64; Williams v. Peyton, 4 Wheat. 77; Garrett v. Wiggins, 1 Scam. 335; Fitch v. Pinckard, 4 Scam. 69; Ronkendorff v. Taylor, 4 Pet. 349; Pope v. Headen, 6 Ala. 433; Elliot v. Eddins, 24 Ala. 508;