Syllabus.

⚫ certain per centum of the active service pay of the grade held by such officer at the time of his retirement. His active service pay at that time has always been taken as the basis in ascertaining his future pay, and we are unable to discover in the act in question any design to modify this persistent rule.

It would appear not only that Congress has manifested no intention by the act of 1883 to change the laws governing the pay of retired officers, but that it has, in at least one instance, shown the contrary purpose. By a provision in the fifth section of the act of July 15, 1870, no officer promoted upon the retired list "shall, in consequence of such promotion, be entitled to any increase of pay."

It can hardly be the intention of counsel to assume that the amount of pay in question in this case should be calculated as though Professor Roget was retired in 1873 instead of in 1864. The retirement of an officer is a proceeding that can only take place in a prescribed manner, and it is not pretended that such proceeding occurred, with reference to that officer, more than once.

The Court of Claims was right in dismissing the petition of the claimant, and the judgment of that court is

Affirmed.

MARX v. HANTHORN.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF OREGON.

No. 123. Argued January 19, 20, 1893. - Decided March 6, 1893.

To make a tax sale valid, observance of every safeguard to the owner created by statute is imperatively necessary.

When not modified by statute, the burden of proof is on the holder of a tax deed to maintain his title, when questioned, by showing that the provisions of the statute have been complied with.

It is competent for a legislature to declare that a tax deed shall be prima facie evidence, not only of the regularity of the sale, but also of all prior proceedings, and of title in the purchaser; but as the legislature cannot deprive one of his property by making his adversary's claim to it conclu

Statement of the Case.

sive of its own validity, it cannot make a tax deed conclusive evidence of the holder's title to the land.

The reasonable meaning of the Oregon statutes regulating notices and sales of property for taxes, (Gen. Laws, ed. 1874, 767, §§ 90, 93; Hill's Ann. Laws, 1309,) is that such notice and advertisement should give the correct names of those whose property is to be sold.

Notice in Oregon that the property of Ida J. Hawthorn was to be sold was not only not notice that the property of Ida J. Hanthorn was to be sold, but was actually misleading, and such want of notice or misleading notice vitiated the sale.

THIS action was brought by the plaintiff, a subject of the Emperor of Germany, against the defendant, a citizen of Oregon, to recover the possession of lots 3 and 4, in block E, in the town of Portland.

The action was originally brought against B. Campbell, the party in possession, who, having answered that he was in possession as the tenant of Ida J. Hanthorn, the latter was substituted for him as defendant.

It is alleged in the complaint that the plaintiff is the owner of the premises, and that the defendant wrongfully withholds from him the possession thereof.

The answer contains a denial of the allegations of the complaint and a plea of title in the defendant, with a right to the possession, and the replication denies the plea.

The defendant claims the premises under a deed of August 28, 1878, from W. W. Chapman and Margaret F., his wife, the latter being the patentee of the United States, under the donation act of 1850, of a tract of land including said block E. The plaintiff claims under two deeds, one from ex-Sheriff Sears of July 29, and the other from Sheriff Jordan of July 30, 1886, each purporting to be made in pursuance of a sale of the property for taxes by the former on June 30, 1884.

By a stipulation filed in the cause it is admitted that the defendant was the owner in fee of the premises at the time of the assessment and sale of the same for taxes, and that she is still such owner, unless such sale and the conveyance thereon had the effect to pass the title to the purchaser thereat, and that the property is worth $6000.

The case was tried by the court without the intervention

Statement of the Case.

of a jury, and on the trial the proceedings, constituting the assessment, levy of taxes, and the sale of the property and the conveyance thereon, were received in evidence, subject to objection for want of competency and materiality. From these it appears that on August 27, 1883, the premises were listed by the assessor of Multnomah County, on the assessment-roll thereof, for taxation in that year as the property of Ida F. Hanthorn, and valued at $2200; that on October 17, 1883, the entry on the assessment-roll concerning said property was transcribed on to the tax-roll of said county by the clerk thereof, and on the same day the taxes for school, state and county purposes, amounting to $34.32, were levied on said property and extended on said tax-roll by the county court of said county, and the sheriff thereof commanded, by a warrant endorsed thereon, signed by the county clerk and sealed with the seal of said court, to collect said taxes by demanding payment of the same and making sale of the goods and chattels of the persons charged therewith; that the sheriff, George C. Sears, to whom said warrant was directed, having returned that the tax levied on said property was unpaid and delinquent, the latter was, on April 22, 1884, entered on the delinquent tax-roll of said county by the clerk thereof as the property of Ida F. Hawthorne, and a warrant endorsed thereon, signed by said clerk and sealed with the seal of said county, commanding said sheriff to levy on the goods of the delinquent taxpayer, and in default thereof on the real property mentioned in said tax-list, or sufficient thereof to satisfy said taxes, charges and expenses; that afterward said sheriff returned that he received said delinquent tax-list and warrant on April 22, 1884, and, in pursuance thereof and in default of personal property, he levied on said lots three and four, and advertised and sold the same on June 18, 1884, as the property of Ida J. Hawthorn, to J. E. Bennett for $37.51, the amount of said delinquent tax and costs and expenses thereon; that on July 29, 1886, George C. Sears, as ex-sheriff of said Multnomah County, executed and delivered to said Bennett a deed for the premises, in which the proceedings concerning the assessment of said property,

Statement of the Case.

the levy of the taxes thereon, the non-payment and delinquency of the same, and the sale of the property therefor were substantially recited, except that it does not thereby appear that the premises were entered on the delinquent tax-list or advertised or sold as the property of Ida F. Hawthorn, but as that of Ida F. Hanthorn; and that on July 30, 1886, Thomas A. Jordan, as sheriff of said Multnomah County, by A. W. Witherell, deputy, executed and delivered to said Bennett a deed of the premises, containing the same recitals as the one from Sears. Each deed was acknowledged on the day of its execution and afterwards admitted to record. The original Jordan deed was put in evidence and also a certified copy of the record; but the execution of the original was not otherwise proved, and it is contended that the acknowledgment is not legal, and that therefore it cannot be read in evidence without direct proof of its execution.

On July 31, 1886, Bennett and his wife, Alvira F., in consideration of $500, as recited in the deed, quitclaimed the premises to the plaintiff.

The statute of the State of Oregon, in relation to the validity and effect of tax deeds, provides as follows:

"SEC. 90. After expiration of two years from the date of such certificate, if no redemption shall have been made, the sheriff shall execute to the purchaser, his heirs or assigns, deed of conveyance, reciting or stating a description of the property sold, the amount bid, the year in which the tax was levied, that the tax was unpaid at the time of the sale, and that no redemption has been made; and such deed shall operate to convey a legal and equitable title to the purchaser, sold in fee simple to the grantee named in the deed; and upon the delivery of such deed all the proceedings required or directed by law, in relation to the levy, assessment and collection of the taxes, and the sale of the property, shall be presumed regular, and to have been had and done in accordance with law; and such deed shall be prima facie evidence of title in the grantee, and such presumption and such prima facie shall not be disputed or avoided except by proof of either (1) fraud in the assessment or collection of the tax;

Statement of the Case.

(2) payment of the tax before sale or redemption after the sale; (3) that the payment or redemption was prevented by the fraud of the purchaser; (4) that the property was sold for taxes for which the owner of the property at the time of the sale was not liable, and that no part of the tax was levied or assessed upon the property sold."

"SEC. 93. All sales made for delinquent taxes must be made as is otherwise made in selling real estate upon an execution, at the court-house door between the hours of ten o'clock A.M. and four P.M., in the daytime; and notice of such sale shall be given in some public newspaper, published in the county where the property is situated, or in case no paper is published in the county, then in the paper published nearest the place of sale, and in general circulation in the county, by advertisement for four consecutive weeks before such sale, describing accurately the lots or lands to be sold, and that they are to be sold for taxes due thereon." General Laws of Oregon, c. 57, p. 767, ed. 1874.

On March 23, 1887, the defendant, Ida J. Hanthorn, commenced a suit in equity in the Circuit Court of the United States against E. Marx, the plaintiff in this suit, for the purpose of determining his claim to the premises, alleging that the tax deed under which the plaintiff claims title to the same was void, for certain reasons, and brought into court and tendered him the sum of $50.60 in payment of what was due him thereon.

On February 21, 1887, after the present case had been submitted to the court below for decision, the legislature of Oregon amended said section 90 of the tax law so as to make a tax deed only prima facie evidence of title in the grantee, and requiring the party claiming to be the owner as against the holder of the tax title to tender and pay into court, with his answer, the amount of the taxes for which the land was sold, with interest thereon at the rate of 20 per cent per annum from the sale to the date of the deed, together with any taxes the purchaser may have paid, with interest thereon, for the benefit of the holder of the tax deed, his heirs or assigns, in case the same should be held invalid.