Lagroue v. Rains

WagNER, Judge, delivered the opinion of the court. The plaintiffs brought their action in ejectment to recover the possession of certain lands lying in Schuyler county, and adduced a regular chain of title from the general government. The defendants derived title and relied exclusively on a tax deed made by the county collector, on a sale of the land for delinquent taxes. On the trial no declarations of law or instructions were asked or given, and consequently there is nothing preserved in the record that we can review, except an objection made to the ruling of the court in admitting evidence. The court permitted the introduction and reading in evidence of the tax deed, against the objection of the plaintiffs, and this is the only error that we can notice. The only recital of any advertisement' in the deed is that the collector proceeded by posting, in the most public place in each municipal township, one written notice containing a list of the land and the amount of taxes due and unpaid thereon, and for what years, etc. The revenue law under which this land was attempted to be sold provides that “ it shall be the duty of the collector to publish an advertisement in some newspaper published in his county having the greatest circulation, if any such paper there be ; and if there be no such paper published in his county, then in the nearest newspaper in this State having the greatest circulation, which advertisement shall be once published, or, if so ordered by the County Court, by posting no less than one printed handbill or advertisement in each municipal township in the county where the lands are situate.” There is then an alternative provision, “ that if, for any cause, the collector shall be unable to make the adver [538] tisement and notice aforesaid; such-list may be published by one printed or written, list, together with .the notice' above required, posted up at -the door of the court-house in said county,” etc. (Adj. Sess. Acts 1863, p-. 85, § 2.) There is no pretense that an exigency arose which authorized the collector to act, or that he attempted to act under this latter clause; .-.It is-not shown that he posted up any notice at all at the court-house door. But the fact plainly appears from the recital, and is admitted and undisputed, that the advertisement was made in pursuance of thfe provision which empowered the collector to give the requisite notice by.posting up handbills in.a-public'place, in each municipal township. The question presented for our decision, then, is. whether the putting up of written-notices was a sufficient, .compliance.with the law.' . The proposition may be laid down .as undoubted,-that the advertisement, in the time and manner prescribed-by-law,- is prerequisite to the validity of a tax. title; and this principle is not altered by the.provision in our law requiring judgment'to be entered up in the County Court.- Before the adoption of the present law, the officer derived-his power-to sell-, in party from the advertisement.' Now the court obtains' its authority to proceed, in part, from the, same, source.;. Power is conferred upon the .court, to be exercised on certain defined and -limited -contingencies ; and these contingencies must- have happened, and- the conditions on which: it can act. must have been performed, before its act can be valid. Its authority, does not attach until the lfiw.,has been pursued and ..complied with. -The .notice is the indispensable, .prerequisite, and without it the court has no-jurisdiction in the premises.;- As-the-proceeding is ex parte and founded upon constructive- notice,- a strict compliance-with the law by which the court acquires .jurisdiction is necessary. When the law prescribes a. .particular or specific -manner-for-making advertisements or giving notices, no court or officer -has a-right to substitute another or.-a different mode. . The law required that the handbill set up.should.be printed. -Here the requirement was wholly disregarded, and.written handbills were"substituted. ■■ ..There are doubtless good and .sufficient reasons why the notices [539] should be printed. Some persons.-can .read- printing who-.cannot read writing. Printed notices are - calculated to attract ¡ more attention, impart a more general information, and give greater facility for examining into what land is to be sold or has .become delinquent. Everything that has a tendency to inform the community and promote-competition in these sales is essential. But, without giving reasons, it is sufficient for us to know that the law absolutely demanded that the handbills posted up should be printed, and that the officers disregarded-and disobeyed i.ts express mandates. If they could make one- kind of substitution they could another, and no person could ever know how or where to look for the protection of his rights. The court erred in admitting the-deed in evidence. --Upon its face it showed that the law had not been complied with, and that'it was void and conveyed no ’title. For this error the judgment -will be reversed and the cause remanded. The other judges concur. •