Hart v. Picard

Woods, C. J., delivered the opinion of the court. 1. This is an action of ejectment brought by the appellee against the appellant for two lots of land in Harrison county. The record of the proceedings and the decree of the chancery court in the case of Juliana Hart, the appellant in this case, against Horace Bloomfield, the vendor of appellee in the present case, together with the judgment of this court affirming said decree, were improperly admitted in evidence. The decree of- the chancery court in that suit, affirmed by the supreme court, was not res adgudicata. That suit was by Mrs. Hart to cancel, as a cloud upon her title to the premises, the tax deed held by her adversary. She failed to show title in herself in that suit, and, necessarily, her bill was dismissed. On appeal by her from that decree, there was an affirmance of the decree dismissing her bill on the specific ground of her failure to show any title in herself, and this without considering the validity of Bloomfield’s tax title. The validity of that title was not passed upon in that decree of this court, and that is the question now presented in the present action to try title. 2. It is contended by counsel for appellant that the deed of the auditor is void, because, as counsel think, the auditor attempted to convey for less than he was required by law to collect from the purchaser. The act of 1878, section 49, of chapter 3, laws of 1878, under which five per cent, on the amount of the taxes collected from the purchaser by the auditor was to be secured as compensation to the sheriff, was .a very peculiar one. By its terms the intending purchaser of land held by the state under tax sales, employed the services of the sheriff in making his purchase and securing his deed from the auditor, and did not himself apply directly to or deal with the auditor. For his services thus rendered the intending purchaser, the sheriff, under section [655] 49 of that act, ivas entitled to have, for his services, five per cent, on the amount of the taxes collected by the auditor from the purchaser, and this five per cent, for the sheriff was required to be collected by the auditor from the purchaser at the time of making his deed. It will thus be seen that the five per cent, for the sheriff was compensation, not for making the sale of the land originally to the state for delinquent taxes, but for his services in the purchaser’s behalf in the sale from the state to the purchaser. But in 1880 this peculiar and cumbersome method of acquiring title to lands from the state was abolished, and all its machinery fell with it. Thereafter, the purchaser applied directly to the auditor, without any intervention or agency by the sheriff. His services were dispensed with, and his compensation for such services ceased. After the repeal of the act of 1878 it was not the duty of the auditor to collect the five per cent, for the sheriff. He would have violated the law if he had done so. It follows, therefore, that the auditor’s deed to Bloomfield was not void. 3. If it be admitted that the book introduced by appellant is the consolidated record required by the statute (Laws of 1880, p. 80), to be made by the auditor of lands then held by the state for taxes, and from which was dropped all lands so indefinitely described as to be void, according to recognized legal rules, still it was only prima facie evidence of the correctness of the facts contained in it. That it was not correct is abundantly shown upon its own face, and, as to the land in controversy, by other official documents it was demonstrated that it was worthless. On the whole record before us, we have no doubt as to the correctness of the judgment appealed from, and the cause.is Affirmed.