#### Christy v. Minor.

October 1815.

i. Ejectment — Evidence—Deed from Federal Marshal.* —A deed from the marshal of the Federal Court, to the purchaser of land sold for non-payment of the direct tax imposed by the congress of the United States, is not sufficient evidence to support the title of the purchaser, on a trial in ejectment; but other proof is requisite, of the authority of the marshal to make such conveyance, under the several acts of congress recited therein.

On the trial of an action of ejectment for several lots in the town of Fredericksburg, in behalf of John Minor against Joseph Christy, the plaintiff, to support the issue on his part joined, introduced a a deed, bearing date the 18th of March, 1805, from Joseph Scott, marshal of the Virginia District, reciting, “that, whereas, by the 12th section of an act of the congress of the United States, entitled, “An act to lay and collect *a direct tax within the United States,” passed on the 14th day of July, in the year 1798, it is enacted, that, when any tax assessed on lands or houses shall have remained unpaid for the term of one year, the collector of the collection district, within with such lands or houses may be situated, having first advertised the same for two months, in six different public places within the said district, and in two Gazettes in the state, (if there be so many,) one of which shall be the Gazette in which the laws of such state shall be published by authority, if any such there be, shall proceed to sell at public sale, and under the direction of the inspector of the survey, either the dwelling house, or so much of the tract of land, (as the case may be,) as may be necessary to satisfy the taxes due thereon, together with costs and charges, not exceeding the rate of one per centum for each and every month the said tax shall have remained due and unpaid : and whereas by the second section of another act of the congress of the United States, entitled, “an act to amend an act, entitled, an act to lay and collect a direct tax within the United States, passed on the 16th day of March in the year 1802, it is enacted, that, in case of failure on the part of the owner or owners of the aforesaid lands, (thereby meaning the lands lawfully charged with said tax,) to pay, within the aforesaid time, (thereby meaning the six months from the date of a notification, prescribed by the first section of the act last mentioned,) the full amount of the tax due thereon, the collectors, under the direction, and with the approbation of their respective supervisors, shall immediately proceed to sell, at public sale, at the time and place mentioned in the advertisement of the supervisor, so much of the land aforesaid, as may be sufficient to satisfy the same, together with all the costs and charges of preparing lists, advertising and notifying as aforesaid, and of sale ; and whereas it appears, by the transcripts of the lists of lands sold for the non-payment of the said tax, deposited with the said Joseph Scott by the late supervisor of the Virginia District, that, by virtue of the aforesaid act of the congress of the United States, the lots of land, hereinafter mentioned and conveyed, were sold to the *said John Minor, for the sum of four dollars and thirty cents, by the collector of the collection district, within which the said lots of land are situated, on the 16th day of December, in the year 1802, for the non*196payment of the direct tax, assessed in the name of Joseph Earl, (the rest of the owners unknown, and taxed the sum of four dollars and thirty cents, including cost, on ten half acre lots of land, viz. nos. 5, 223, 228,191, 197, 193,199, 207, 9, and 12, situated in Spottsylvania county; and the time allowed by law for the redemption of the said lots of land so sold, has expired since the 3d day of March 1804, and no redemption thereof hath taken place, according to the said act of congress: and whereas, by the fifth section of one other act of the congress of the United States, entitled, “An act further to amend an act, entitled, an act to lay and collect a direct tax within the United States,” passed on the 3d day of March 1804, it is enacted, “that the several marshals, for the time being, of the said District Courts, shall alone have the authority, in all cases where the time limited by law for the redemption of lands sold, shall not have expired before the passing of this act, and they are hereby authorised and required to execute deeds, for so much of the said lands and lots as shall have been sold to satisfy the amount of the direct tax, chárges and costs due thereon, and which shall not have been redeemed by or for the original proprietor, within the time limited by law, to the purchasers of such lands or lots, or their legal representatives : provided, however, and be it further enacted, that no such deed shall be executed, except for lands or lots contained in the transcripts, filed with the clerk of the proper District Court, in conformity with the preceding section, or unless the purchaser of any tract of land or lot sold for non-payment of the tax, shall have filed, within three months after the passing of this act, or within three months after such sale, with the supervisor, officer acting as supervisor, or marshal, (as the case may be,) a receipt from the collector for the purchase money, dated within thirty days subsequent to such sale, and specifying distinctly the original description of the land assessed, and the quantity *sold: and whereas the lots of land, hereinafter mentioned and conveyed, are contained in the transcripts filed with the clerk of the court of the United States for the Virginia District;” the said Joseph Scott, “in consideration of the premises, and in conformity with the direction of the said last mentioned act of congress,” conveyed the said lots of land to John Minor, without warranty ; the said conveyance being made in his official character only.

And this was all the evidence on the part of the plaintiff.

The defendant, to support the issue joined on his part, introduced a deed of mortgage, bearing date May 22d, 1765, from Roger Dixon to James Harford; “and it was admitted, for the purpose of this trial only, by the plaintiff, that, upon the last mentioned deed, a suit in chancery, to which the plaintiff was not a party, had been instituted for some time, and was pending and undetermined at the time of the execution of the pa per writing, introduced by the plaintiff, for the purpose of foreclosing the mortgage, and subjecting to sale the property conveyed by the said deed, which comprehended the lots in the declaration mentioned ; that the suit regularly progressed to a final decree for the sale of the mortgaged premises; that the decree was regularly and properly executed by the proper officer, and the lots in the declaration mentioned struck off to the defendant, who was the highest bidder, and conveyed to him by a deed,” in hasc verba ; “and actual possession of the said lots was delivered to the defendant; and that the plaintiff had never been in actual possession of the said lots:” whereupon, the plaintiff moved the court to instruct the jury, that the title, derived to the plaintiff by the sale of the lots aforesaid, for the non-payment of the direct tax, imposed by the acts mentioned in the said deed offered in evidence by the plaintiff, and the purchase thereof by the plaintiff, and the conveyance under that purchase offered in evidence by him, was sufficient to entitle the plaintiff to recover, in opposition to the title aforesaid set up by the defendant: which instruction was accordingly given by the court; whereupon the defendant filed a bill of exceptions. *Verdict and judgment for the plaintiff. The defendant obtained a writ of supersedeas from a judge of this court.

*

Tax Sales — Parties Claiming under — What They Must Show. — Few principles of law are more firmly settled, and from their influence on the transactions of others, more widely known, than that where the validity of a deed depends upon an act *in pais,*the party claiming under it is bound to prove the performance of the act; that, in the case of a naked power not coupled with an interest, the law requires that every prerequisite to the exercise of such power should precede it; that the claimant under a sale made to enforce a forfeiture must show that the law has been strictly complied with; that the recital in a deed ol an officer selling for taxes are not even *prima facie*evidence of the regularity of his proceedings, and that these facts must be proved aliunde. Dequasie v. Harris, 16 W. Va. 353; Flanagan v. Grimmet, 10 Gratt. 426, both cases citing principal case. To the same effect, see the principal case cited in Nalle v. Fenwick, 4 Rand. 591; Allen v. Smith, 1 Leigh 256; *foot-note*to Kinney v. Beverley, 2 H. & M. 318. But see *foot-note*to Flanagan v. Grimmet. 10 Gratt. 421; *foot-note*to Vancey v. Hopkins, 1 Munf. 419.

Thursday, October 12th, 1815, the president pronounced the court’s opinion, “ that the deed from Scott to Minor, stated in the bill of exceptions, though proper evidence of a conveyance from the former to the latter, yet was no evidence, without other proof, of the authority of Scott to sell and convey under the several acts of congress recited therein ; and that the judge of the Superior Court erred in his instruction to the jury, that it was sufficient evidence ; if such instruction, without separating the law from the fact, would in any case be proper.”(1)

Judgment reversed; verdict set aside; and cause remanded for a new trial.

(1)

 Note. That this instruction was improper, see Fisher’s executor v. Duncan and Turnbull, 1 H. and M. 561. — Note iu Original Edition.