been executed by an attorney, was really given by the principal. But to require from the original proprietor proof that these acts were not performed by the collector, would be to impose on him a task always difficult, and sometimes impossible to be performed:" See also Stead v. Course, 4 Cranch. 403; Parker v. Rule, 9 Id. 64; Garrett v. Doe ex dem. Wiggins, 1 Scam. 335 [30 Am. Dec. 653]; Johnson v. McIntire, 1 Bibb. 295; Caldwell v. Eaton, 5 Mass. 403; Den ex dem. Love v. Gates, 4 Dev. & B. 363. A purchaser of lands which have been sold for the nonpayment of taxes can not defend his possession by the production of the collector's deed, and proof of its execution, but he must also show that the lands were listed; that taxes were due and unpaid, and that the lands were regularly advertised for sale. "In deciding on tax titles, great strictness has always been observed, and less latitude given than in proceedings on judgment and execution. A collector who sells lands for taxes must act in conformity with the law from which he derives his power, and the purchaser is bound to inquire whether he has done so, or not. He buys at his peril, and can not sustain his title, without showing the authority of the collector, and the regularity of the proceedings. In these cases the maxim caveat emptor applies:" Holt v. Hemphill, 3 Ohio, 232; see also Hughey v. Horrel, 2 Id. 231; Blair v. Caldwell, 3 Yeates, 284; Wistar v. Kammerer, 2 Id. 100; Birch v. Fisher, 13 Serg. & R. 208; Den ex dem. Pentland v. Stewart, 4 Dev. & B. 386; McClung v. Ross, 5 Wheat. 116; Thatcher v. Powell, 6 Id. 119; Cox v. Grant, 1 Yeates, 164; Terry v. Bleight, 3 T. B. Mon. 271 [16 Am. Dec. 101].

In an ex parte proceeding, as a sale of land for taxes, under a special authority, great strictness is required. To divest an individual of his property against his consent, every substantial requisite of the law must be complied with. No presumption can be raised in behalf of a collector who sells real estate for taxes, to cure any radical defect in his proceedings; and the proof of regularity devolves upon the person who claims under the collector's sale: Ronkendorff v. Taylor, 4 Pet. 349. To the same effect is Den ex dem. Avery v. Rose, 4 Dev. 549, in which it was also held, that the collector's deed must be made at the time directed by the statute. In The Lessee of Watt v. Gilmore, 2 Yeates, 330, lands were assessed and sold for the non-payment of taxes, as the property of A. G. and J. G., but were advertised as the property of C. G. and company: Held, that the variance between the advertisement, assessment, and deed. was

fatal to the sale and operation of the deed. So it has been decided, that under the eighth section of the act of 1812, to amend the act for the incorporation of the city of Washington, a sale of unimproved squares, or lots in the city, for the payment of taxes is illegal, unless such squares and lots have been assessed to the true and lawful proprietor thereof; and the advertisement of sale must contain a particular statement of the amount of taxes due on each lot separately: City of Washington v. Pratt, 8 Wheat. 681. And if land is assessed in the name of A. when in fact it belonged to B., a sale for the non-payment of taxes will not, though a deed has been executed, and legal forms have in other respects been adhered to, convey a title to the purchaser: Johnson v. McIntire, 1 Bibb, 295. In fact it is indispensable to the regularity of a sale, in such case, that the assessment of the tax should have been made strictly in conformity to law: Doe ex dem. Mix v. Whitlock, 1 Tyler, 305; Blossom v. Cannon, 14 Mass. 177; Thayer v. Stearns, 1 Pick. 482. Where the statute requires the notice shall be given to the occupant, or proprietor of the land, previous to the sale for the non-payment of the tax, unless such notice is given, the deed of the collector passes no title to the purchaser: Jackson ex dem. Watson v. Esty, 7 Wend. 148; Comstock v. Beardsley, 15 Id. 348; Bush v. Davison, 16 Id. 550.

If land is sold for the non-payment of divers taxes, one of which is illegal, and the rest legal, the sale is void in toto: Elwell v. Shaw, 1 Greenl. 339; see also, Libby v. Burnham, 15 Mass. 144. So where a sheriff sells land for the taxes of two years, when he had a right to collect only those due for the last year, the sale is void, and his deed vests no title in the purchaser: Den ex dem. Douglass v. Short, 3 Dev. 432. And in Jones v. Gibson, Tayl. T. R. 480, the sheriff sold an entire tract of land, for the payment of the taxes assessed thereon, although the taxes for one third of the tract had been paid by a person who claimed to be the proprietor of that portion of it, and it was held that the sale was void. So where a sale of land was made for taxes, after a legal tender to the collector, by a part owner, of all that was due, no title passed to the purchaser: Den ex dem. Franklin v. Rutherford, 3 Hawks, 283. A statute of New York required a tax list to be made out, "containing the names of all the taxable inhabitants residing in the district at the time of making out the list, and the amount of tax payable by each inhabitant, set opposite his name;" and further directed, that a warrant issue, which "shall command

the collector to collect from every person in such tax list or rate bill named, the sum therein set opposite to his name. Held, that where a farm is owned, and actually possessed by the widow and heirs of a person deceased, the designation of such owners in a tax list, and warrant for the collection of the tax, as "the widow and heirs of A. B., deceased, is a sufficient compliance with the directions of the statute to justify the collector in executing the warrant: Wheeler v. Anthony, 10 Wend. 346. And in the Lessee of Massie's Heirs v. Long et al., 2 Ohio, 287 [15 Am. Dec. 547], it was held that the assessment of a tax upon a part of a lot or one acre of a lot," without quantity or location, in the one case, or without location in the other, is too vague and indefinite to authorize a sale of any part or in any place. It has been decided under the tax laws of Illinois, that a deed to the purchaser of land sold for taxes, must show that the land was sold for the taxes of a particular year, and if it is ambiguous in this respect, it can not be explained by parol testimony: Maxcy v. Clabaugh, 1 Gilm. 26.

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The earlier legislation of Illinois, in respect to the sale of lands for a default in the payment of taxes, seems to have been modified, so as to make the deed of the auditor (the officer authorized to convey), evidence of the regularity and legality of the sale, until the contrary shall be made to appear: Messinger v. Germain, 1 Gilm. 631; see also, Hinman v. Pope, Id. 131. And although by a statute of New York, it is declared, that where lands are sold in consequence of the non-payment of taxes, and a deed is regularly executed, such deed "shall be conclusive evidence that the sale was regular," it has been held the conveyance may be defeated by proof of the fact, that the tax for which the land was sold, was paid before the sale. It was said, that "the statute declares that the conveyance shall vest an absolute estate in fee simple in the purchaser; which it does not, if the tax had not been paid; but if it has been paid, then no estate passes by the sale, for the statute intended to divest the title of the former owner, for non-payment of the tax, and for that only; and it must be so construed." The purchaser buys subject to being defeated if the tax has been paid, and if his title is invalidated for that cause, he must look to the state for the relief which such a case requires: Jackson ex dem. Clark v. Morse, 18 Johns. 441. We might, perhaps, have saved ourselves the labor of thus multiplying citations on this branch of the case, by merely referring to a decision of our own, in which it was held, that to sustain a sale of real estate for the non-pay

AM. DEO. VOL. XLVI-15

ment of taxes by the marshal and collector of the city of Wetumpka, the purchaser must show that every prerequisite to the regularity of such sale had been strictly complied with: Pope v. Headen, 5 Ala. 433. But as the opinion, in that case, though clearly and satisfactorily reasoned, did not go into an elaborate examination of the question, we have thought altogether proper on the present occasion, to fortify the conclusion there expressed. It is important to the state, as well as to individuals, that the law upon this point should be understood, and this must be our apology for having thus extended this opinion.

Our statutes do not declare that a sale and conveyance, such as we are considering, shall operate proprio vigore, it merely provides that the collector's "deed shall be good and effectual, both in law and equity." By this we understand that it shall pass the title to the vendee, if the sale was made in obedience to the directions of the law, and was authorized by it—not that the vendee shall be released from the onus of proving every prerequisite to the regularity of the sale. This being the case, the citations from 4 Wheat., 3 Ohio, and others of a kindred character are directly in point. By these we have seen, that a tax collector's deed is not even prima facie evidence in favor of the purchaser's title, but must be sustained by proof of extraneous facts.

The notice we have taken of our statutes, and the adjudications upon kindred enactments elsewhere, very clearly indicate that the proceedings of the collector, Huggins, under whose deed Lyon claims, were eminently irregular. The assessment does not particularize the land, by stating what portion of the Orange Grove tract was assessed. It could not have been ascertained, if at all, without reference to deeds and writings, as well as oral testimony, to which access could most probably be obtained only by time and industry. It does not appear whether the assessment was made in the ordinary mode by the proprietors of the estate, or by the collector, upon his neglect or refusal to give it in; nor is it shown that the collector delivered to the proper persons a written statement of the tax assessed. It may be well questioned, whether it is proved that the persons liable to pay the tax had not sufficient property in Mobile county that could be sold for its satisfaction. Is it certain that the lands were assessed to the proper persons? It is obvious from the proof, that the greater part of the sum assessed was paid by the real proprietors of the property, or their agents, even previous to its having been advertised for sale.

Again: The advertisement by the collector of the time and place of sale, is as general as the assessment, and proposed to sell the balance of the Orange Grove tract remaining unsold," to pay the entire sum assessed, without noticing the payment of any part of it; nor can the land to which it refers be identified, and located, otherwise than by reference to extraneous written, and perhaps verbal evidence. And to this it may be added, that it not only does not appear that the sale was advertised for three months, but it was proved by the positive testimony of one witness, that the advertisement first appeared on the seventh of January, 1842, and the sale was made on the seventh of February next thereafter-being thirty days. It is unnecessary to inquire whether any particulars in which we have noticed the proof to be wanting, constitute so many legal objections to the title of the defendant, Lyon, since it is perfectly clear from the terms of the statute, that the two last stated are substantial defects in the advertisement, and are fatal to his pretensions. The affirmation in the answers of Lyon and Huggins, that the sale was advertised according to law, are too general and indefinite to entitle them to be considered a direct denial of the allegation, that the notice of the sale was published for thirty days only. These defendants do not state what they consider a legal advertisement-it may be, they consider such as was published, and for the period proved, was a compliance with the statute. Be this as it may, upon principles of reason and analogy, the opinion of a defendant generally expressed, that a matter was transacted pursuant to the law, can not outweigh the positive declarations of a witness, who states the facts specially, which show that the law was disregarded.

We need not consider any other question discussed in this case, as the result can not be changed by any conclusion we might attain in respect to them. The consequence is, that the chancellor rightly perpetuated the injunction, and set aside the sale and conveyance upon which the defendant, Lyon, rested his claim. The decree is therefore affirmed.

CITED in Shattuck v. Carson, 2 Cal. 589, to the point that a court of chan cery may interfere to prevent an illegal sale, and the consequent execution of an improper deed. In Early v. Doe, 18 How. 618, the supreme court of the United States recommended the perusal of the principal case.

TAX SALE, STRICT COMPLIANCE WITH STATUTE ESSENTIAL TO VALIDITY OF: See Brown v. Wright, 42 Am. Dec. 481, note 484, where other cases are collected.

INJUNCTION TO PREVENT TRESPASS: See Smith v. Pettingill, 40 Am. Dea 667, note 668, where other cases are collected.