Dukes v. Rowley

Walker, J. The questions raised by the assignment of errors, on this record, with two or three exceptions, have been settled by previous decisions ■ of this court, and we deem it unnecessary to again discuss them in this opinion. The first objection raised, which we propose to consider, is, whether the placita, or convening order of the court, is so defective in not stating that the clerk and sheriff were present, as to render all of the proceedings void. It shows that the judge was present holding the term, and we find that the record does show that business was done by the court, and that a record of its proceedings was kept. This is sufficient, if those officers were a constituent part of the court, to raise a presumption that they were present and discharging their duties. The court seems to have been held at the time required by law, and by the judge who was regularly authorized to hold the term, and finding the proceedings regularly entered of record, we must presume that it was all performed by the proper officers. We judicially know that every Circuit Court has these officers, and we know that certain duties are imposed upon them by law, and the conclusion is, that they were present and performed them, when we see they have been discharged. By the 57th section of the revenue act, (Scates’ Comp. 997,) it is required, that the clerk of the Circuit Court, upon the return, shall file the collector’s report and the certificate of publication, and record the same in a book to be kept for that purpose, in which he shall enter all judgments, orders, and other proceedings of the court in relation thereto. This is a positive requirement, and its omission will invalidate the judgment. It is a requirement, with others, which confers jurisdiction upon the court. This is required by the statute, and may not be dispensed with. While this is true, the 73rd section of this act makes the collector’s deed prima facie evidence in all controversies and suits, that the sale was conducted in the manner required by law, that the land was subject to taxation, and had been listed and assessed in the mode required by law, that the taxes were not paid, that the lands had not been redeemed, that they were advertised as required, that it was sold for taxes, and that the grantor in the deed was the purchaser, but does not make it evidence that the report and certificate were recorded. Then, this deed is not evidence that the collector’s report and certificate were recorded as required by the statute. It has been held that, notwithstanding this provision, the holder of the tax title must produce a judgment and precept upon which the sale was made, before the deed can be admitted in evidence. This provision only relates to the time, place and mode of conducting the sale, and raises no presumption that the collector’s report and certificate of advertisement were recorded, or that a judgment was rendered or a precept issued. These are facts that must be shown by the holder of the tax title, to authorize him to rely on it as title. And for the want of such evidence, the tax deed was improperly admitted in evidence. It was urged, that it did not appear that any tax was assessed against this land, for the non-payment of which, it was sold. That a levy and non-payment pf a tax on land are necessary to a sale, is unquestionably true, but the statute has declared, that the collector’s deed shall be prima facie evidence that the land had been listed and assessed in the time and manner required by law. And to have overcome this prima facie presumption created by the statute, the appellant should have rebutted it by evidence that those acts had not been performed. This he failed to do, and the presumption still exists, that the law was complied with in that regard. By the record in this case, it does not appear that there was employed any words, marks, figures or- characters, denoting for what sum the judgment was rendered, or the precept was issued. This, we have repeatedly held, is insufficient to sustain a sale for taxes. The judgment must in some way indicate the amount in dollars and cents, for which the recovery is had. The employment of numerals alone, unexplained, is not sufficient. There is in this case no character, word or mark opposite to the numerals annexed to the description of this land, or at the head of the appropriate column, to indicate the amount they were designed to represent. For the want of such certainty, the judgment was insufficient to authorize the introduction of the tax deed in evidence. It was objected that the certificate of publication was insufficient, as it failed to show that the persons who signed it were publishers of the newspaper in which the tax list was advertised. The evidence on the trial shows that they were the publishers, and the presumption is that the fact was proved to the court, at the time the case was heard on the application for a judgment, for the taxes. This is certainly true in a collateral proceeding, whatever might be the presumption, if it was questioned in error. There is a certificate of publication, and it is in proper form, except that it does not state that the persons signing it were the publishers of the paper. The court, on the application for an order of sale, had to be satisfied that the certificate returned was made by the printer or publisher of the newspaper, and the statute has not prescribed the mode of proof, and no exclusive mode having been designated, any legitimate evidence of that fact may be received by the court, and the legal presumption is, that such proof was made. We are unable to perceive any other errors in this record for which the judgment should be reversed. But for that indicated, the judgment of the court below is reversed, and the cause remanded. Judgment reversed.