Dow v. Chandler

Black, J. This was an action of ejectment for a tract of land in Gfreene county. Plaintiff’s title was a deed from the United States collector of internal revenue, dated March 21, 1873, to Onstott, and a deed from him to plaintiff. The collector’s deed was based upon a sale made on the twenty-ninth of December, 1871, for a deficiency tax on the November list of 1879, and a capacity tax on the February • list of 1870, assessed against the defendant as a distiller. This deed was read; in evidence over the objections of the defendant, and' as neither party offered evidence to support or impeach the deed, it must stand or fall on its own recitals.; The deed must state the same facts which are required to be stated in the certificate of sale—-that is to say, it must “ set forth the real estate purchased, for whose taxes the same was sold, the name of the purchaser, the price paid therefor,” and be executed in accordance with the laws of this state upon the subject of sales of real estate under execution. When so made it “ shall' b e prima facie evidence of the facts therein stated, and if the proceedings of the officer as set forth have been substantially in accordance with the provisions of law,” ' the deed shall operate as a conveyance, etc. Revised Statutes of the United States, sections 3198 and 3199.: Numerous objections are made to the validity of this deed, but we do not regard any of them ás vital, save the-one with respect to notice of sale. Section 3197 (R. S. of W ' S) provides' that' the; officer “shall give notice to the person whose estate it is proposed to sell, by giving him in hand or leaving at his, last or usual piace of abode ' *' '* ' a. notice, in writing, stating what particular estate is to'be"sold, describing the same with reasonable certainty, and the time [248] when, and place where said officer proposes to sell the same, which time shall not be less than twenty, noi more than forty days from the time of giving said notice. The said officer shall also canse a notification to the same effect to be published in some, newspaper within the county where such seizure is made * * * and shall cause like notice to be posted at the post office nearest to the estate seized, and in two other public places,” etc. The personal notice was given on the ninth of December, and the sale was made on the twenty-ninth of the same month. The personal notice appears to be sufficient. The deed recites that publication was made in a designated weekly newspaper “for three weeks successively, to-wit: on the fourteenth, twenty-first and'twenty-eighth days of December, 1871;” it also recites that a like notice was posted at the post office, and at two other public places. While the recital is, that three weeks ’ notice was given, yet the facts stated show that less than twenty days’ notice was given, for the first publication was on the fourteenth and the sale was on the twenty-ninth of December. The contention is that the law did not require any specific time of publication or of the notices to be posted. These proceedings are summary, and it appears to be the plain purpose of the law to give notice of the sale, not only to the person whose property is to be sold, but to the public. The construction contended for by the plaintiff would make notice by publication and posting for any length of time sufficient. This is clearly not the purpose of the law, for it contemplates a substantial notice to bidders. But one reasonable construction can be given to the statute, and that is that the newspaper publication and the notices to be posted must all be given for not less than twenty days before the day of sale. The deed is, therefore, void on its face, for it shows affirmatively that the law was not complied with in the [249] paatter of giving notice of sale.' The deed should have been excluded. Judgment reversed and cause remanded. Henry, O. J., absent. The other judges concur.