Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1858-06-29

How they clahg and clash the keys!
You give up ali enjoyment Cor you certainly right
Ia concluding that youlTbe compelled listen all the night
To the 81 singing g. g. 9na le playing oil ne le'i'
ofshs bellies, bellies, bellies, bellies,
The clamor and tie elangor Of the6elles !
.a-I.zsE OFFICIAL.
Opinions Of the supreme Court Of the state
81 Temnessoes delivered at SacksOn5 At
April AerAhls lS0S' -- "a.
Richard R. IIigttoWar and sae Hays plaintiffs in error VIII
lis Freelle, Deiendantin error.
This ecdon of ejectment was brought by Freddie,
the defendant in error 10 the Circuit Court OF Upton
county. The plaintiffs in error Who we're permitted
to DEFEND pleaded not guilty, upon which issue was
taken. There vas 3 verdict for the defendant IN
error, upon which judgment was rendered, and on
the Court refusing newtrial the defendants below
have prosecuted writ of error to this Court
Upon the trial the plaintiff below read as evidence
TO the Jury a graRt from the State Of Tennessee TO
himself for the land in controversy, Issued the
LIST day of December, 1854, aad founded on an entry
d1tad the 24Iday Of July, 1854.
Fhe defendants below then read to She jury GER
tilted COPY Of entry, No 694, 10 the name Of Good
rich and Wheaton for the same land, under which
thew claim dated 23rd December, 1920 and by
virtue Of which they seek TO Vitiate the plaintiffs
grant under he provisions Of the LIST Of the
Act of 1851, ch- 326.
To avoid the effects Of this entry, the plaintiffs
offered ia evidence taXsale deed, executed by
Isaac e. CLARK, former DneIlu collector
Upton county, on the ISM day Of September, lS45,
and founded on q sale made on the .lsL Monday IN
July l847 At which the plaintiff purchased the land
in controversy.
This deed, was both executed and acknowledged
for probate Clark after he ceased to be the Sheriff
and Tax Collector for said county.
The deed reCites that judgmedt was rendered 10
favor Of the State, by the Circuit Court Of Upton
county in February, lsA for Sc % for taxes, costs,
and charges, due aud unpaid for the year 1916,
against a rac ofland Il which Goodrich and Wheaton
are the repuled owners lying il Upton county, sc
That he sold said tract Of land TO the plaintiff By
virtue Of an order Of sale, issued said Judgment
To the reading OF this deed the defendants objected
on the grouudJhat the eckno WledgemeHt Of Is
ton was made by Clark after he ceased to be Sheriff
and Tax Collector. Both the execution and acknOEl
edgmsnt we're made on the same day. The objection
was overruled by the Court and the deed was read
10 the jury.
Tie y.4Int then proved the delivery Of the follow
ing notice to John 3 Wade, who he also proved
was in possession Of the land az the time: M.
John B. Wade, Sir: You will lake notice That Oh
the expiration of thirty days from the service Ofthis
notice shall proceed to enter the tract OF land on
which you now reside" Tuis notice vas dated the
9Th OF June 1854 and signed willis Freddie"
This was al the evidence thai is regarded as in
any way material TO the question presented.
The deed does not recte, that the land in ques
ton had been duly reported" tor non payment Of
taxes,-nor was the judgment condsmning the land
produced In evidence By the lst section Of the
Act OF 1851 CHI. 326, it is provided that hereafter
il shall not be lawful for any person to enter any
land in any of the entry takers Offices, on which
land another resides, OF which Is cultivated by
other or which has been previously entered until
such person shall have given in writing, at least
thirty days notice the person residing on, cu-
tivsting said land the previous eHteTsT, his
or their aSgRce Of his intention to enter the same
and am entry made gTaRt obtGea contrary 10 the
provisions Of his act, shall be void"
Under the provisions of this act, the defendants
below Insist that The plaintiffs grant is void, for
want OF the required notice, to the original enJerers
or their assIguees The plaintiff meets this objec-
ton, by assuming that by virtue Of his purchase
and tax deed himself The assignee Of said entry
and as such had q right 10 obtain his grant. The
defendants reply, that both the deed and the tax
sale are void. The sale is void, because the deed
does not rec re that the land had been duly reported
for uon-psyment Of taxes thereon; AMI the deed
is the only evidence adduced OF the sale and
that the deed is void, because 1t was both executed
and acknowledged by Clark after he ceased 10 be
Sheriff and Collector of taxes Tor the county of Tip
ton. This deed is the only evidence introduced By
the plaintiff 70 show the vslidiJy Of the sale tax
deed is prima facie evidence Of the facts it reces
but the first question is, Goes il recte enough to
give urisdic ion 10 the Court 20 condemn the land
The first section Of the Act Of 1874, Oh, 81 pro-
vides
That in all ooses of sales ofland hereafter made
for public taxes under the provisions Of the laws
now in force It shall be sufficient to make such sale
valid and communicate good title 10 the purchaser
that the land Sold ss N the county N Which il has
been reported for the payment Of the taxes
thereon; thatt has been duly reported that an order
of sale has been awarded and that the sale Of said
land was duly adverised to establish 12sh facts the
ShsrFs deed gecitiHg their existence shall be Drima
fdcis AID ali Judgments or orders Of sale shall De
conclusive nness the person wishing TO show the
Irregular y Of the same, prove that the taxes
we're duly paid, before such judgment or order f
sale was rendered"
We regard the recitations in the deed if it were
valid as Irima facie true but does il recIre the
necessary facts TO give the Circuit Court iurisdic
ton 10 render Judgment against the land? We
think not.
We have seen, that by the statute 1t is required to
make such sale valid, and Communicate goodtitle
to the burehase-, il must appear that 'the t,rIe
sld 20 sod lies in the county in which it has beer O.
ported Tor non-pByment Of Tue tax,s thereon. tS,,
also Williams VS.. Harris, Sneed's r, 49, Thai
it has been duly Tp0rtsd; that order Of sale has
been awarded, and that the sale Of said land was
duly advertised.
Now, this deed does not reote, nor is there any
thing IN this record 10 show that this land duly
reported for the non payment OF the taxes thereon
Without such report, duly made, even under the
provisions Of this statute which is sufficiently srin-
gent against the owner, the Court would not have
jurisdiction TO render judgment against the land,
ana An6 tHAAAe ADgCeNAeB "a ot toFuHt lAaCe,
and void.
VIC also think that this deed, having been exeout-
ed and ackno Wledged by Clark, after his term OF
Office as sheriff andta Collector had expired, com
muuicated no title TO The purchaser
Il was by virtue Of the office alone, that he was
authorized to SELL aud the instant he ceased to hold
the office, he ceased 10 have fny power authority
TO do any further act upon the subject. This pow
er was conferred by legislative enactment upon b s
successor IN Office.
Prior 10 the Act Of 1856, by which power is given
10 Sherifs and Revenue Collectors 10 sell lands, AMI
make titles for the for the non payment OF
taxes at any time within two years after the expi-
ration Of their term Of office, they had power
make such deeds or acknowledge their execution
after they went out Of Office. lt is wholly unlike
the case Of an officer levying an execution upon
personal property, by which The title 10 the proper
" is vested in him and therefore, be can sell aftr
Lis official term expires. Ii results, therefore that
the plaintiff acquired right by his tax deed, and
vas not the assignee Of The entry in the name Of
Goodrich and Wheaton: and not being such as
sipuee, entry and grant void, by the express
provision Of the Act Of 1851, for fthe Iequir
ed notice Of his intention 10 make his entry, TO Good
rich & Wheaton, the prior enterers, or their as
sienees. The judgment Of their Circuit Court is /
erroneous, must be reversed and The cause remand
ed for another trial. HARRIS,
WuTrU CyLerE.