Goodall v. Tucker. 13 H.

pay the debts; and if all these facts are proven and established by the evidence, that then the plaintiff is entitled to recover judgment against the defendant for the amount of the judgment against the executors who qualified in Virginia.

2. That the exemplification of the record and the judgment obtained by the plaintiff against the executors, Allen and Johnson, and the return of nulla bona thereon, are evidence against the defendant, a co-executor in Louisiana.

3. That co-executors, unlike co-administrators, are privies in estate, because they derive the same privities over the same estate from the same will; and that under the will of Robinson, which was read, and the proofs of the qualification which were offered in this case, the plaintiff is entitled to recover against the defendant the amount of the judgment obtained by him against the only acting executors of the domicile of the decedent.

4. That if the plaintiff is not authorized to recover against the defendant on the mere production of the record of the judgment against his co-executors in Virginia, who alone made probate of the will there, and qualified, that he is entitled to recover on proving that the original cause of action on which that judgment was founded, [*471] was a just, valid, and subsisting demand against the tes

tator Robinson, and the additional fact that the estate in the hands of the executors of the domicile of the testator in Virginia, was exhausted, and that the defendant or co-executor has ample estate in his hands in Louisiana.

5. That independent of the record of the judgment in Virginia, the plaintiff has a right to recover against the defendant as executor of Robinson, upon the bond filed and proven, the amount of the balance due on that bond.

6. That the original cause of action on which the judgment in the Henrico county court is established and proven, and a recovery thereon, is not barred by the prescriptive laws of Louisiana.

7. That upon all the evidence offered, the plaintiff is entitled to a judgment in his favor.

8. That the suit in Virginia against the co-executor was a judicial interpellation, which would stop the running of prescription against the demand which was the cause of action in that suit. All of which the court overruled, and the plaintiff excepted.

And upon the facts proven, the defendant asked the court to decide: 1. That the Virginia judgment against the co-executors was not evidence against the defendant. 2. That the original cause of action on which that judgment was rendered, was barred as to the defendant by prescription. And, 3. That upon the whole evidence,

Pillow v. Roberts. 13 H.

the defendant was entitled to judgment in his favor. To all which plaintiff objected, and the court overruled his objections, and gave the decisions as asked by defendant; and to these several opinions plaintiff excepted.

And the defendant objected to each and all of said propositions, and the court sustained severally the objections of defendant, and refused to decide any one of said propositions as asked by the plaintiff. To each of which several opinions and decisions the plaintiff at the time excepted."

The court in sustaining the latter has erred.

We think that all of the prayers for the plaintiff were properly made, and that conjointly they make an issue decidedly in his favor. See opinion in case of Hill v. Tucker, 13 How. 458.

We shall not notice them more particularly than to say, that the suit upon the bond in Virginia, was a judicial interpellation, which stopped the Louisiana prescription from running against the cause of action in that suit and in this suit.

Further, the record shows that this suit was brought in Louisiana within the time that its law fixes for prescribing actions upon such a demand.

The judgment is reversed, and the case will be remanded for further proceedings, in conformity with this decision.

JEROME B. PILLOW, Plaintiff in Error, v. TRUMAN ROBERTS.

13 H. 472.

The impression of a seal upon paper, sufficiently clear to be recognized, is a valid legal seal. Under the law of Arkansas, a deed, made by a collector of taxes, and acknowledged and recorded, is evidence of the validity of the collector's proceedings.

An entry under a deed from a tax collector, and possession of the land described in the deed, is sufficient evidence of an adverse seisin under a statute of limitations.

By the law of Arkansas, five years' possession under an invalid deed from a tax collector, is a bar to an action by the true owner.

ERROR to the circuit court of the United States for the eastern district of Louisiana. The case is stated in the opinion of the court.

Lawrence and Pike, for the plaintiff.

Crittenden, (attorney-general,) contrà.

GRIER, J., delivered the opinion of the court.

Roberts, the defendant in error, was plaintiff below, in an

action of ejectment for 160 acres of land. Pillow, the defendant be

Pillow v. Roberts. 13 H.

low, pleaded the general issue, and two special pleas. The first, setting forth a sale of the land in dispute, for taxes more than five years before suit brought. The second, pleading the statute of limitation of ten years. These pleas were overruled on special demurrer, as informal and insufficient; and the judgment of the court on this subject is here alleged as error. But as the same matters of defence were afterwards offered to be laid before the jury on the [*473] trial of the general issue, and overruled by the court, it will be unnecessary to further notice the pleas; as the defence set up by them, if valid and legal, should have been received and submitted to the jury on the trial. In the action of ejectment, (with the exception, perhaps, of a plea to the jurisdiction,) any and every defence to the plaintiff's recovery may be given in evidence under the general issue. And as the decision of the court on the bills of exception will reach every question appertaining to the merits of the case, it will be unnecessary to decide whether those merits were sufficiently set forth in the special pleas, to which the defendant was not bound to resort for the purpose of having the benefit of his defence.

On the trial, the plaintiff below gave in evidence a patent for the land in dispute, from the United States to Zimri V. Henry, dated 7th May, 1835; and then offered a deed from said Henry to himself, dated 10th November, 1849. This deed purported to be acknowledged before the clerk of the circuit court of Walworth county, in the State of Wisconsin, and was objected to, 1. Because there was no proof of the identity of the grantor with the patentee other than the certificate contained in the acknowledgment. 2 Because the certificate of acknowledgment was not on the same piece of paper that contained the deed, but on a paper attached to it by wafers. And, 3. Because the seal of the circuit court authenticating the acknowledgment, was an impression stamped on paper, and not " on wax, wafer, or any other adhesive or tenacious substance."

The first two of these grounds of objection have not been urged in this court, and very properly abandoned as untenable. The third has been insisted on, and deserves some more attention. Formerly, wax was the most convenient, and the only material used to receive and retain the impression of a seal. Hence it was said: Sigillum est cera impressa; quia cera, sine impressione, non est sigillum. But this is not an allegation, that an impression without wax is not a seal: And for this reason courts have held, that an impression made on wafers or other adhesive substance capable of receiving an impression, will come within the definition of " cera impressa." If, then, wax be construed to be merely a general term including within it any substance capable of receiving and retaining the impression

Pillow v. Roberts. 13 H.

of a seal, we cannot perceive why paper, if it have that capacity, should not as well be included in the category. The simple and powerful machine, now used to impress public seals, does not require any soft or adhesive substance to receive or retain their impression. The impression made by such a power on paper is as well defined, as durable, and less likely to be destroyed or defaced by vermin, accident, or intention, than that made on wax. It [*474 ] is the seal which authenticates, and not the substance on which it is impressed; and where the court can recognize its identity, they should not be called upon to analyze the material which exhibits it. In Arkansas, the presence of wax is not necessary to give validity to a seal; and the fact that the public officer in Wisconsin had not thought proper to use it, was sufficient to raise the presumption that such was the law or custom in Wisconsin, till the contrary was proved. It is time that such objections to the validity of seals should cease. The court did not err, therefore, in overruling the objections to the deed offered by the plaintiff.

After the plaintiff had closed his testimony, the defendant offered in evidence two certain deeds from Miller Irwin, sheriff of Phillips county, and assessor and collector of taxes therein, to Richard Davidson, dated on the 22d of October, 1844; one for the north half, and the other for the south half of the quarter section of land now in dispute. On objection, the court refused to permit these deeds to be received, and sealed a bill of exceptions. The defendant then offered the same deeds to Davidson, and, in connection therewith, a deed from Davidson to Armstrong, and also a deed from Armstrong to the defendant; and to accompany them with proof of possession by himself and those under whom he claims, for more than ten years, as to the south half of said land, and more than five years as to the whole of it. The plaintiff objected to this evidence. "And it was by the court ruled, that the possession of such deeds, accompanied by possession of the land, was not sufficient to prove such possession of the land to be adverse to the plaintiff and his grantor without further proof that the defendant or his grantors claimed adversely; so the court refused to permit any deeds to be read in evidence to the jury."

These bills of exception may be considered together. They present two questions; 1. Whether, by the law of Arkansas, the deeds offered in evidence, (and which were regularly acknowledged and recorded according to law,) should have been permitted to go to the jury as evidence of a regular sale of the land mentioned therein for taxes. And, 2. Whether, without regard to their validity as elements of a good legal title per se, they should not have been received for the purpose of showing color of title, in connection with pos

Pillow v. Roberts. 13 H.

session by the persons claiming under them, for a length of time sufficient by law to bar the entry of plaintiff.

1. In considering these questions, it will not be necessary to set forth at length all the provisions of the revenue laws of Arkansas for

compelling the payment of taxes assessed on land. A brief [ * 475 ] recapitulation of their most prominent provisions will suffice. These laws make it the duty of the collector, on or before the 15th of September of each year, to make a list of lands assessed to persons non-resident, and the tax due thereon, with a penalty or addition of 25 per cent., and to file this list with the county clerk. He is directed, also, to set up a copy of the same at the court-house, and to publish it in a newspaper at least four weeks before the first Monday of November, giving notice that unless the taxes shall be paid on or before that day, the land will be sold. On that day, the collector is authorized to offer for sale, at public auction, such tracts or lots of land, or so much of them as will be sufficient to raise the taxes and penalty assessed and unpaid, and to continue the sales from day to day. The purchaser to pay down forthwith the amount of taxes, &c., and receive a certificate describing the land purchased, directing, if necessary, the public surveyor to lay off the part purchased by metes and bounds after one year allowed for redemption. This certificate, which is made assignable, may be presented to the collector, who is authorized to execute and deliver a deed to the holder of it for the land described therein. Then follows the 96th section of the act, which is as follows:

"The deed so made by the collector shall be acknowledged and recorded as other conveyances of lands, and shall vest in the grantee, his heirs, or assigns, a good and valid title both in law and equity, and shall be received in evidence in all courts of this State as a good and valid title in such grantee, his heirs, or assigns, and shall be evidence of the regularity and legality of the sale of such lands."

The deeds offered in evidence were regularly acknowledged and recorded. It is not denied that Irwin, the grantor therein, was sheriff, assessor, and collector of taxes in the county of Phillips, as he is described in the deed. The deed for the south half recites an assessment of the same for taxes in 1839, according to law; that the taxes remained unpaid; that the land was regularly advertised and offered for sale on the 5th of November, 1839, by auction; struck down to William Vales, who paid the purchase-money and received a certificate; that the time for redemption having long expired, and Richard Davidson become the assignee or holder of the certificate; therefore, the said collector granted, &c., the said south half to said Davidson, his heirs, &c.