Clung v. Ross

• Decision Date: 14 February 1820
• Parties: McCLUNG v. ROSS
• Court: U.S. Supreme Court

18 U.S. 116

5 L.Ed. 46

5 Wheat. 116

McCLUNG v. ROSS.

February 14, 1820

Feb. 10th.

THIS cause was argued by Mr. Williams^a for the plaintiff in error, and by the Attorney-General, and Mr. F. Jones,^b for the defendant.

^a He cited 2 Tenn. Rep. 44. 218. 186. 365. 358. 242. 1 Tenn. Rep. 362. 467. 545. 1 Hayw. Rep. 24. 62. 65. 95. 2 Hayw. Rep. 80. 3 Mass. Rep. 379. 2 Tidd's Pract. 936. 2 Binney, 223. 329. 1 Binney, 40. 4 Dall. 226. 1 Wash. Rep. 313. 9 Johns. Rep. 58. 179.

^b They cited 1 Tenn. Rep. 119. 126. 436. 2 Tenn. Rep. 40. 5 Hayw. Rep. 294. 1 Hayw. 176. 4 Wheat. 77.

Mr. Chief Justice MARSHALL delivered the opinion of the Court.

This is an action of ejectment brought by the lessee of David Ross against Charles McClung, for 5,000 acres of land, lying in the distict of East Tennessee.

At the trial of the cause, the plaintiff in the Court below gave in evidence two grants from the State of North Carolina, for the land in controversy, to Stockly Donalson and John Hackett, the one dated the 20th of September, 1787, and the other dated the 22d of February, 1795. He also gave in evidence a deed of conveyance of the said land, purporting to be from Stockly Donalson and John Hackett, dated the 29th of September, 1793, and registered in Hawkins county, Tennessee, on the 27th of December, 1793. The reqular registration of this deed, so far as respected Stockly Donalson, was admitted by the defendant. Its registration as to John Hackett, was not admitted, and was proved only by the following endorsements.

'December Sessions, 1793.

This deed was proved in open Court, and ordered to record. Test.

RICHARD MITCHELL, C. H. C.

This conveyance was registered 27th of December, 1793, in liber G. p. 127. in the register's office of Hawkins county.

THOMAS JACKSON, C. R.'

It is stated in the bill of exceptions, that the execution of the deed on the part of Hackett, was not proved.

The defendant also claimed under Stockly Donalson; but his deeds being of subsequent date, could confer no title while the deed to Ross remained in force. For the purpose of invalidating this deed, he offered in evidence certain records of the County Court of Rhea, showing that the land had been sold for the non-payment of taxes, had been conveyed by the sheriff to the purchaser, and by the purchaser to the defendant. The regularity of this sale, and the validity of the deeds made in consequence of it, were contested, and the Court determined against their validity; to which opinion of the Court the counsel for the defendant excepted.

In the year 1803, the legislature of Tennessee passed an act, subjecting all lands to which the Indian claim was extinguished, held by deed, &c. to taxes. The 13th section of the act provides, that 'in case there shall not be any goods or chattels on which the sheriff can distress for public taxes, &c. he shall report the same to the Court of his county.' The Court is then directed to make out certain lists, and to direct certain publications, after which the Court may enter up judgment, on which execution may issue, and the lands be sold. In 1807, the legislature passed a supplementary act, the 3d section of which enacts, that it shall be the duty of the collector of taxes in each county, after the 1st day of January in each year, to make report to the Court in writing, 'of all such tracts or parts of tracts of land as have, from his own knowledge, or from the information of others, not been returned for taxation for the said preceding year; and it shall be the duty of the said Court to cause said report to be recorded in books to be kept for that purpose, and to cause judgment to be entered up for double the tax due on the said land, not returned for taxation, and so unpaid, and shall order the same to be sold,' &c.

In January, 1810, Miller Francis, collector of taxes in Rhea county for the year 1809, reported to the Court, that the following lands were not listed for taxation for the year 1809, to wit, &c. Then follows a list of several tracts of land, among which is the tract in question, reported three several times in the following terms:

Reputed owners. Quantity. No. of title Date of title Location, Tax

Stockly Donalson, 5000 209 20 Sept. 1787 Pleasant, &c.

S. Donalson and

John Hackett, 5000 1347 22 Feb. 1795

David Ross, 5000 209 20 Sept. 1787

Upon the return of which report the Court entered up a judgment for the sale of the said lands, and after the publication required by law, an execution was directed, under which the said land was sold as being three distinct tracts; when Robert Farquharson became the purchaser of the tracts reported to belong to Stockly Donalson, and to Stockly Donalson and John Hackett; and the agent Of David Ross became the purchaser of the tract reported to belong to David Ross.

A question of considerable difficulty arises on the validity of these sales. Under the act of 1803, the power of the Court to render judgment in such cases for the sale of land, is founded on there being no personal property from which the tax might be made. The jurisdiction of the Court depends on that fact. Whether it is necessary that its existence should be shown in the judgment of the Court, is a question on which the State Courts appear to have decided differently at different times. But the last, and we believe, the correct opinion, reported in 5 Haywood, 394. establishes the general principle, that in these summary proceedings, every fact which is necessary to give jurisdiction, ought to appear in the record of the Court. The act of 1807 directs the Court to proceed on the return of the collector, that the taxes of the preceding year are unpaid, or that the land has not been returned for taxation. Whether this act, which is supplemental to that of 1803, authorizes the Court to give judgment for the sale of land, although there may be personal property in the county sufficient to pay the tax; or only varies the mode of proceeding against ahe land, without varying the circumstances under which it may become liable, is a question which does not appear to have been decided in Tennessee, and which it is unnecessary to decide in this case, because we are all of opinion, that if the sale was valid, Ross is to be considered as the purchaser of his own title, and Farquharson as the purchaser of the title of Donalson and Hackett. The objection to this is, that the agent of Ross stood by, and permitted Farquharson to bid. But this objection implies a knowledge on the part of Ross, or his agent, that the land sold in the name of Donalson and Hackett, was his land. There is no evidence that either of them possessed this knowledge; nor are the circumstances such as would justify its being presumed. Were the Court required to presume fraud on this occasion, it is not to Ross, or to his agent, that the evidence on this particular part of the transaction would justify us in ascribing it. We think, then, that the defendants in the Court below acquired no title to Ross's land by the sheriff's sale or deeds. We think, then, that there was no error in rejecting these deeds.

The defendant, also, claimed the benefit of the act of limitations, which makes seven year's peaceable and adverse possession a complete bar to the action.^c

^c The statute of Tennessee of 1797, c. 47., made to settle the true construction of the statute of limitations of North Carolina of 1715, provides, 'that in all cases, whenever any person, or persons, shall have had seven years' peaceable possession of any land, by virtue of a grant, or deed of conveyance founded upon a grant, and no legal claim by suit in law, by such, set up to said land, within the above term, that then, and in that case, the person or persons, so holding possession as aforesaid, shall be entitled to hold possession, in preference to all other claimants, such quantity of land as shall be specified in his, or their said grant, or deed of conveyance founded on a grant as aforesaid.' The act then proceeds to bar the claim of those who shall neglect, for...