Stoudenmire v. Brown

B. E. SAEEOLD, J. In ejectment by the purchasers of land, at a tax sale, against a subsequent purchaser from the owner, the plaintiff's insisted on the conclusiveness of their deed from the probate judge as evidence of the facts stated in the seven sub-divisions of § 87 of the revenue law of 1868. They also objected to any defense to their suit, unless the defendant would comply with the provisions of § 93 of the same law. The court decided that these enactments were unconstitutional, [708] The legislature has authority to enact rules of evidence, subject to the fundamental or constitutional law. The constitution of our State, as well as that of the United States, secures to every person a remedy by due process of law for the protection of his person, reputation and property. It also divides the powers of government into legislative, executive and judicial departments, and forbids any person or collection of persons, being of one of these, to exercise any power properly belonging to either of the others. These guaranties clearly prohibit the legislature from debarring a person the prosecution or defense of his right to his property in the courts of the State. A grant- or’s conveyance of his own property commits him to its recitals and stipulations, as his deliberate admission of the facts stated, and as his contract in respect to them, to a far greater extent than can be accorded to the conveyance of his property to another by a public officer. The former is the disposition which a person makes of his own property ; the latter is generally an involuntary divestiture of his title, The requisition which “due process of law,” or, “the law of the land,” makes, involves judicial as well as legislative action. This is, perhaps, by precedent and long practice, sufficiently obtained in respect to sales of property for taxes, by allowing to the owner the assertion of his rights in the courts after the sale has been made, when the revenue law contains no provision for such previous adjudication, as is secured in some of the States of the Union. Our law makes no such provision, but the probate judge is required, upon the return of the certificate of purchase, to make out a deed and deliver it to the purchaser. This deed, under the 87th section, is made conclusive evidence: 1st, That the property was listed and assessed at the time and in the manner required by law; 2d, That the taxes were levied according to law; 3d, That the property was advertised for sale in the manner and for the length of time required by law; 4th, That the property was sold for taxes as stated in the deed; 5th,,.That the grantee named [709] in the deed was the purchaser; 6th, That the sale was conducted in the manner required by law; 7th, That all the pre-requisites of the law were complied with by all the officers who had, or whose duty it was to have had, any part or action in any transaction relating to or affecting the title conveyed, or purporting- to be conveyed, by the deed, from the listing and valuation of the property up to the execution of the deed, both inclusive. It is further provided in the same section, that no person shall question the title acquired by the probate judge’s deed, without first showing that all taxes due .upon the property had been paid. In this case the defendant proved that no assessment of the property had been made/ and, consequently, that no taxes had been levied on it. The certificate of purchase and the deed, therefore, contained statements which were false in fact. Without such assessment and levy the sale would be void. — Blackwell on Tax Titles, p. 154. Shall the deed prove beyond contradiction facts which had no existence? The act does not dispense with these prerequisites. But the deed is made conclusive evidence that they were performed. We do not hesitate to say that such a rule of evidence is contrary to the guaranty of the Constitution. — Blackwell on Tax Titles, pp. 80, 82. Cooley characterizes it as not a law regulating evidence, but an unconstitutional confiscation of property. — Cooley’s Const. Lim. 369. In Allen v. Armstrong, 16 Iowa, 508, a revenue statute, identical in terms with ours, in respect to the conclusiveness of the deed as evidence, was brought under partial consideration. The defendant did not controvert the assessment or valuation, and the levy of the tax. In reference to this the court said: “If any given step or matter in the exercise of the power to tax (as for example the fact of a levy by the proper authority) is so indispensable, that without its performance no tax can be raised; then that step or matter, whatever it may be, cannot be dispensed with, and with respect to that the owner cannot be concluded from showing the truth by a mere legislative [710] declaration to that effect.” The power of the legislature to make the tax deed presumptive or prima fade evidence of the regularity and validity of all prior proceedings is admitted. — Blackwell on Tax Titles, 79; Pillow v. Roberts, 13 How. 176. The reason assigned is that the presumption of regularity may be rebutted by proof, and no real injury be inflicted. Perhaps this concession has been too readily yielded. The onus probandi ought to rest upon the party whose position renders him most capable of procuring the proof, or makes it most equitable or just that he should do so. We decide that so much of § .87 of the Revenue Act of 1868, as declares that the tax deed shall be conclusive evidence of the facts there enumerated, is unconstitutional. The 93d section of the same act is but a corollary of the other; and is in violation of the Constitution.—Conway v. Cable, 37 Ill. 82. The court held that the entire section 87 was unconstitutional and void. This was erroneous, and may possibly have effected some injury to the appellant. For this error the judgment is reversed and the cause remanded. [Note by Bgpobtee. — The opinion in the foregoing case was delivered at the June term, 1874, and is here inserted by direction of the Chief Justice, in advance of other cases decided at the same term, owing to the important questions passed on in the case.]