Den On Dem. of E. v. Craig

• Decision Date: 31 December 1844
• Citation: 5 Ired. 129,27 N.C. 129
• Parties: DEN ON DEM. OF E. V. KELLY et al. v. JANE CRAIG.
• Court: North Carolina Supreme Court

5 Ired. 129

27 N.C. 129

DEN ON DEM. OF E. V. KELLY et al.

v.JANE CRAIG.

Supreme Court of North Carolina.

December Term, 1844.

The mere delivery by a clerk to a sheriff of a book, purporting to be a tax list, unauthenticated by the official certificate of the clerk, is not competent evidence that such was the tax list.

Where the clerk's office had been burnt, and the records destroyed, and it was proposed to establish the assessment of a particular lot for a certain year, and the sheriff was offered to prove that he had seen either in the clerk's office the original list, or in his predecessor's hands an authenticated copy of the tax list, and to show its contents, it not appearing that the latter was lost or destroyed, Held that the evidence was incompetent, and could not be left to the jury.

It is always a question of law, whether the best evidence in the party's power and of which the nature of the case admits, has been produced.

It is essential to the validity of a sale for taxes, that the sheriff shall have returned to the County Court, at its term next preceding the sale, a list of the lands on which the taxes are unpaid, and which he purposes to sell, with the names of the owners, if known, &c. as required by law. The statute is not merely directory, but a sale made without complying with its provisions is void.

The cases of Slade v. The Governor, 3 Dev. 365, and Mordecai v. Speight, 3 Dev. 428, cited and approved.

Appeal from the Superior Court of Law of New Hanover County, at a Special Term in January, 1844, his Honor Judge MANLY presiding.

Ejectment for one-fourth part of a lot of ground, No. 231, in the town of Wilmington, which was sold by the sheriff in September, 1838, for the tax due thereon for the year 1836, as the property of one Sneed, and unlisted in 1836. The lessor of the plaintiff became the purchaser by agreeing to pay the double tax, demanded by the sheriff, for one-fourth part of the lot, and they had it duly laid off by the surveyor, and a plat made, and took a deed from the sheriff.

To show that the land was liable to a double tax, because it was not listed for taxation in 1836, the sheriff produced a book, which he swore had been delivered to him by the clerk of the County Court of New Hanover, as the copy of the tax lists returned to the court, on which he was to collect the taxes for that year. To that book, the counsel for the defendant objected, because it was not authenticated as a copy of the tax list by a certificate of the clerk thereon or otherwise. But the court admitted it; and upon inspection it appeared, that lot No. 231 was not contained in the copy furnished by the clerk as stated by the sheriff, but had been entered in another part of the book by the sheriff himself, as property not listed by the owner, and liable to double tax.

The plaintiff, as proof of the amount of tax due on the lot for 1836, offered the sheriff to prove, that, in 1837, he saw, either in the County Court clerk's office an original tax list for 1835, or in the hands of his own predecessor a paper purporting to be a copy of that tax list made out by the clerk of the County Court, in which the lot No. 231 was listed by Sneed, but that he was not certain whether it was the one or the other of those papers which he saw, and from which he ascertained at what value the lot had been assessed for 1835. It further appeared, that the clerk's office had been burned in 1840, and that the original tax list of the year 1835 had not been since seen. The defendant then objected, that the witness ought not to be allowed to state the contents of the paper which he had seen, as he was uncertain where he had seen it, or what paper it was. Nevertheless, the court permitted the witness to give the evidence, and in the instructions to the jury, the court directed them, that they must be satisfied that the document, of which the witness spoke, was the list of taxable property for 1835, otherwise they should disregard it altogether; but if they were so satisfied, it was immaterial, whether that document was an original list returned by the justice of the peace, or the record thereof by the clerk, or an official copy thereof, as either was sufficient for this purpose.

The defendant then moved the court to instruct the jury, that the plaintiff could not recover, because the sheriff did not return to the County Court, before the sale, this lot as property upon which the tax was unpaid, and which he proposed to sell for the tax. But the court held that such a return was not necessary to the validity of the sale, and refused the instruction.

Many other points were raised at the trial, which it is unnecessary to state, as the opinion of the Supreme Court does not turn on them. The jury found for the plaintiff, and from the judgment the defendant appealed.

Strange and Warren Winslow for the plaintiff .

No counsel in this court for the defendant.

RUFFIN, C. J.

The court is of opinion, that the objection to the admissibility of the paper, said to be a copy of the tax list for 1836, ought to have been sustained. It was not sufficiently authenticated. It was not a sworn copy, as the sheriff did not pretend to have compared it with the original, nor was the clerk called to that point. Indeed, it may be doubted, whether an authentication in that way would suffice, and whether it must not be by the certificate of the clerk on the transcript, attested by his signature, as in other transcripts of records. For, as has been said several times, the tax list is the warrant of the sheriff to collect taxes. Slade v. The Governor, 3 Dev. 365. The list ought to be so authenticated, as not only to satisfy the sheriff that it is a copy of the original, but...