# French v. Edwards (80 U.S. 506)

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## Dissenting Opinion

    Miller
United States Supreme Court
80 U.S. 506
French v. Edwards
ERROR to the Circuit Court of the United States for the District of California.
This was an action for the possession of a tract of land situated in the county of Sacramento, in the State of California, 'commencing at the corner of Main and Water Streets of the town of Sutter, at the east bank of the Sacramento River; running thence, in a northerly direction, up and along said river one-half of a mile; thence in an easterly direction one mile; thence southerly, at right angles, one-half mile; and thence westerly, at right angles, one mile, to the place of beginning, containing three hundred and twenty acres.'
The plaintiff derived his title by deed from a certain R. H. Vance, dated March 1st, 1862. Vance acquired his title through sundry mesne conveyances from John A. Sutter, to whom a grant of land, including the premises in controversy, was made in June, 1841, by the then governor of the Department of California. This grant was, in March, 1852, submitted to investigation under the act of Congress of March 3d, 1851, to ascertain and settle private land claims in California, and was adjudged valid and confirmed by a decree of the Board of Commissioners created under that act, and by the District Court and the Supreme Court of the United States, to which the decision of the board was carried on appeal. A patent of the United States pursuant to the decree followed to the grantee, bearing date in June, 1866. As this patent took effect by relation as of the day when the proceedings for its acquisition were instituted, in March, 1852, all the title and rights, which it conferred to the premises in controversy, enured to the benefit of the plaintiff claiming under the patentee, although the deed to him was executed before the patent was issued.
The defendants asserted title to the premises under a deed executed by the sheriff of Sacramento County upon a sale on a judgment rendered for unpaid taxes assessed on the property for the year 1864, and the whole case turned upon the validity of this tax deed.
By an act of California, passed in 1861, the district attorneys of the several counties of the State are authorized and required to commence actions for the recovery of taxes assessed upon real property and improvements thereon, which remain unpaid after a prescribed period. Such actions are to be brought in the name of the people in the courts having jurisdiction of the amount claimed in the counties where the property is situated, against the parties delinquent, the real property and improvements assessed, and against all owners or claimants of the same, known or unknown. The manner in which process issued in such actions shall be served, actually upon the defendants if found, and constructively upon defendants absent from the county, and upon the real property and improvements, is specially prescribed. The answers which shall be allowed therein are also designated, and all acts required between the assessment of the taxes and the commencement of the actions are declared to be directory merely. Personal judgments are only authorized against defendants, who are actually served with process or who appear in the actions; but judgments can be rendered, upon service of process by posting, against the real estate and improvements for the taxes assessed, severally against each, if they belong to different owners and are separately assessed, and jointly against both if they belong to the same owners.
The act regulating proceedings in civil cases generally in the courts of the State, passed in 1851, and its several amendments, so far as they are not inconsistent with the special provisions of the act of 1861, are made applicable to proceedings under the latter act for the recovery of delinquent taxes, subject to the proviso that the sheriff in selling the property under the judgment 'shall only sell the smallest quantity that any purchaser will take and pay the judgment and all costs.' By the act of 1851 the sheriff is required to sell property under ordinary judgments to the highest bidder.
A further act of the State, passed in May, 1862, in relation to suits of this character, provides for service of process by publication in a newspaper, as well as by posting, and authorizes the court, in enforcing the lien for taxes, to exercise all the powers which pertain to a court of equity in the foreclosure of mortgages, but at the same time it declares, that when the decree of the court contains no special directions as to the mode of selling, 'no more of the property shall be sold than is necessary to pay the judgment and costs.'
The judgment under which the sale was made for which the deed in suit was executed to the defendants, was rendered in October, 1865, in an action brought against R. H. Vance, who had transferred his interest to the plaintiff in March, 1862, and against John Doe, Richard Roe, and the real estate in controversy. It found that $113.75 of taxes were due on the property for the year 1864, and for that sum and the taxed costs, $37.65, and accruing costs, it directed that a sale of the property, or so much thereof as might be necessary, should be made in accordance with the statute, and the proceeds applied to pay the judgment and costs.
The deed of the sheriff did not show a compliance in the sale of the property with the requirements of the statutes mentioned. It did not show that the smallest quantity of the property was sold for which a purchaser would pay the judgment and costs, or that any less than the whole property was ever offered to bidders, or that any opportunity was afforded them to take any less than the entire tract and pay the judgment and costs. The recitals of the deed were that the sheriff sold the land described to 'the highest bidder,' and for 'the largest sum bid for said property,' language which imported that the entire tract was offered in one body, and that there were more than one bidder, and of course that different sums were bid for it in this form.
The court instructed the jury to find for the defendant; to which instruction the plaintiff excepted. Verdict was rendered on 3d of April, 1867; the bill of exceptions was signed and dated on the following 13th, and judgment on the verdict was entered on the following 26th, the court not having adjourned until after this date.
On error brought by the plaintiff the main question was whether the departure of the officer from the requirements of the statute rendered the sale invalid; a minor one-of practice-being to the bill of exceptions.
Messrs. E. Casserly and D. Lake, in support of the ruling below:
1. The bill of exceptions, not having been tendered and signed at the trial, forms no part of the record, and, therefore, cannot be considered on his writ of error.
2. The recitals in the sheriff's deed show compliance with the statute. Every presumption is in favor of the deed, which was made as the result of an action at law, and bears no analogy to a conveyance by a tax collector. The 'highest bidder' was the man who offered to pay the judgment and costs for the least quantity of land, and 'the largest sum bid' was the amount of the judgment and costs in connection with the least quantity of land, in other words, the sum which involved the highest appraisement of the value of the tract purchased.
3. Policy and presumptions are in favor of purchasers under sheriff's deed.
4. The statute of California is directory as to the mode of executing the writ, especially under the decisions of the Supreme Court of that State.
5. The remedy of the judgment debtor for a violation of law by the sheriff in the manner of executing the writ is by application to the court to set aside the sale. The sheriff is also liable in damages.
6. Recitals in a sheriff's deed, when not required in law, do not vitiate.
Mr. S. O. Houghton (a brief of Mr. J. Reynolds being filed), contra, for the plaintiff in error.
Mr. Justice FIELD having stated the case, delivered the opinion of the court, as follows:

## Notes

* ↑ Act to provide revenue for the support of the government of the State, approved May 17th, 1861, § 39, Statutes of California of 1861, p. 432.
* ↑ Statutes of 1862, p. 520.
* ↑ Walton v. United States, 9 Wheaton, 657; Ex parte Bradstreet, 4 Peters, 102; Sheppard v. Wilson, 6 Howard, 275; Phelps v. Mayer, 15 Id. 160.
* ↑ Kent, *431, note a (p. 478, ed. 1866), note b, *431. See cases, note 2, *432; Cunningham v. Cassidy, 17 New York, 278; Neilson v. Neilson, 5 Barbour, 565, 568, 569.
* ↑ Blood v. Light, 38 California, 654; Hunt v. Loueks, Ib. 377; see also Jones v. Clark, 20 Johnson, *51; Crocker Sheriffs, § 506, referring to §§ 501 to 504 (last edition).
* ↑ Jackson v. Sternberg, 20 Johnson, 51; Jackson v. Roberts, 7 Wendell, 88; Hooker v. Young, 5 Cowan, 269-70; Blood v. Light, 38 California, 654; San Francisco v. Pixley, 21 Id. 58, 59.
* ↑ Jackson v. Jones, 9 Cowen, 191-2; Jackson v. Streeter, 5 Id. 530; Jacksen v. Pratt, 10 Johnson, 386; Averill v. Wilson, 4 Barbour, 183; Armstrong's Lessee v. McCoy, 8 Hammond, 135; Blood v. Light, 38 California, 6-9.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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