Gibbs v. Dortch

Campbell, C. J., delivei’ed the opinion of the court. The list of land sold to the State for taxes was not defective and insufficient because the name of the tax collector was in the body of the certificate and not at the end of it. All that the statute requires is a certified list of the lands'struck off by the tax collector to the State, etc. It must be certified by the tax collector, but whether his name appears in the beginning or at the end of the certified list is not material. Although the list was made out by a deputy it is shown to have been the act of the principal, and. as effective as if done by him in person. The assessment roll of lands was copied by the clerk and a copy delivered to the tax collector before the first of October, 1879, but the clerk failed to append to the copy delivered to him a certificate that it was a true copy, and on the 3d of January, 1880, the clerk affixed to the copy of the roll in the hands of the collector a certificate that it is “ a true copy of the original land roll as the same was filed and sworn to by the assessor,” and the contention is that the collector had no power to collect by virtue of a roll thus certified. By section 42 of “ An act in relation to the public revenue,” approved March 5, 1878, and in force when this sale was made, it it provided, with reference to the conveyance of lands sold for taxes to individuals and the list of those sold to the State, that “ No such conveyance or list * * * shall be invalidated, nor shall any defense be available against the title thus conveyed in any court of this State except by proof that the taxes for which said lands were [676] sold had been paid or tendered to the proper officer before sale,” etc. If there was an assessment and taxes were due and not paid and land was sold for them, the title vested in an individual or the State by the conveyance or list made by the collector, as prescribed by the statute, is unassailable. This is the effect of the statute referred to. There being an assessment and levy of taxes, a charge was thereby imposed on the property. The law directed a sale to meet this charge if there was a failure to pay the amount due by a .fixed time. The time and place of sale were prescribed by law, and the collector was required to make conveyances to individuals and a list of lands struck off to the State for taxes, and the effect of such conveyances and list was declared to be to vest a title assailable only by proof of payment of taxes due. As we have heretofore said, the State cannot sell the property of the individual who is not in default as to taxes. There must be taxes due and unpaid to give rise to the power to sell for taxes, but when this power exists and is exercised in the manner prescribed by law it is a legitimate exercise of power by the legislature to preclude the delinquent owner of the property sold from attacking the sale because of some mere irregularity incident to the proceedings resulting in a sale. An examination of the several decisions of this court- will show a careful observance of this distinction. There must be an assessment. The constitution requires it, and the legislature cannot dispense with that, although it is to determine how the required assessment shall be made. Taxes must be levied or else they cannot be due and unpaid. Without the concurrence of these-things there cannot be a lawful sale of property for taxes, but if there is such concurrence, and the power of sale conferred by law is exercised by the person authorized at the time and place and in the mode prescribed by law, the owner may not afterward complain that the list or assessment roll in the hands of the collector was not properly certified by the clerk whose duty it was to certify it. The assessment fixed the charge on the property. The taxes were duly imposed. The law designated the officer to collect the taxes, and fo*r convenience directed that he should be furnished with a certified copy of the assessment, the original of [677] which was to remain in the clerk’s office. The law fixed the time against which the taxes then charged should be paid, in default of which the collector was required to sell land at a time and place and in a manner designated, and conveyances were to be made of lands bid off by individuals and a list of those struck off to the State, and such conveyances and list are declared to be unassailable except by proof of prepayment or tender of the taxes due. There is in this case no proof of such prepayment, but an assailment of the title conveyed by the sale by evidence that the assessment roll in the hands of the collector was not properly certified by the clerk. This made no difference'after the sale, because of the express declaration of the law by virtue of which the sale was made. The only way to invalidate a sale under such a law is to prove that taxes were not due and unpaid or that the rights of the owner were disregarded by a sale not in pursuance of the law on that subject. The legislature intended after a sale to cut off all inquiry into mere irregularities as to matters preceding it. Affirmed.