Reeds v. Morton

• Decision Date: 31 January 1846
• Citation: 9 Mo. 878
• Parties: REEDS v. MORTON
• Court: Missouri Supreme Court

9 Mo. 878

REEDS

v.MORTON

Supreme Court of Missouri.

January Term, 1846.

APPEAL FROM LINCOLN CIRCUIT COURT.

TOMPKINS, JEMISON & WELLS, for Appellant.

1. The collector's bond ought to have been read. It tended to prove that the collector was legally in office. The only objection to it is that it was recorded--this does not avoid the bond or nullify the acts of the collector. The law is only directory.

2. The exhibit (A) in Barcroft's deposition, ought to have been read as a part of the deposition. The testimony of Parker, the clerk, shows that the exhibit was inclosed, sealed up, and directed to the clerk, in conformity with the “act concerning Depositions.” See Digest, p. 220, § 18. The deposition referred to it as “a duly authenticated copy.” It was correctly described--the marking and referring to was a sufficient authentication.

3. The parol evidence of the witnesses to prove the setting up of notices, and their contents, ought to have been admitted. The original notices could not be had--every reasonable exertion had been used to get one. It is true that the defendant had not searched everywhere, but he had searched, and searched where it was most likely to be found. The setting up could only be proved by parol evidence.

4. The auditor's certificate and deed were competent evidence. They were the acts of a public officer, made in conformity to law, and ought to have been admitted without proof of execution. They were acknowledged and recorded, and ought to have been read under the statute. See act on Conveyances, p. 123, § 35.

It was objected to on the ground that it did not show title out of the plaintiff. If true, this objection is not to its competency or relevancy, but to its sufficiency. It will not do to exclude-evidence because it is insufficient. The court judges of its competency--the jury of its sufficiency.

5. The notice of lands sold in 1833, tended to explain Sitton's evidence as to the year he set up notices. He stated that he set them up in 1832 or 1833. This notice shows it was not in 1833--it was therefore in 1832.

6. A new trial ought to have been granted, because had the court not committed the errors above mentioned in the exclusion of proper evidence, the defendant ought to have had a verdict. He had proven, first, the appointment of an assessor; second, the assessment; third, the correction by the County Court of the assessor's list; fourth, the appointment of a collector; fifth, the non-residence of Paul Chouteau; sixth, the non-payment of the tax; seventh, the return of the delinquent list to the auditor; eighth, the advertisement of the auditor's sale, both in the newspaper, and in the county of Lincoln; ninth, the sale of the auditor; tenth, his certificate thereof and conveyance, and eleventh, the recording the notice of sale by the clerk of Lincoln Circuit Court, as also the recording the auditor's certificate and deed. All these things were shown by the evidence to have been done in strict conformity with the statute law.

It is also insisted by plaintiff in error that the auditor's deed and certificate, that the provisions of the law had been complied with, were sufficient evidence to show title out of the plaintiff. 1. It is admitted that to make a sale of land for taxes valid, the statute authorizing such sale must be pursued. The main question is, how is that conformity to the statute to be proven? 2. We hold that when a public officer has acted in the discharge of an official duty, the legal presumption is, that his act is done in conformity to the law--that all pre-requisites of the act have been complied with. 3. That that legal presumption applies as well to the validity of the act done, as to his own personal indemnity and security, that the principle may be invoked as well by the person who claims under the officer as by the officer himself. From these premises it follows, that the sale of the auditor pre-supposes the return to him of a non-resident delinquent list, because upon the return of such list only, could he have power to sell. Second, that the return of such “list” pre-supposes assessment, and that the person assessed was a non-resident, because upon the existence of these facts only was the collector authorized to return such list, &c. Third, that the action of the assessor as such, and the action of the collector as such, prove that they were duly appointed respectively to said offices.

We therefore conclude that the exhibition of the auditor's deed proves prima facie that all the pre-requisites of that sale had been complied with. But, second, if this be not the law of evidence, the Legislature have full power to change the law. And we insist that the Legislature have enacted that the certificate of the auditor, “that the provisions of the law have been complied with,” shall be evidence of such compliance. The auditor has made such certificate, and it has been recorded.BATES, for Appellee. This is the same case of Morton v. Reeds heretofore acted upon by this court (see 6 Mo. R. p. 64), and the principal questions for determination are the same now as then. There arose, however, at the last trial, and now appear upon record several minor questions, which have to be disposed of, although none of them seem to me to affect the legal merits of the cause, so far as to be capable of changing the result. These minor questions relate to the exclusion of certain pieces of testimony offered by the defendant (the appellant here), and excluded by the court, and with regard to them the appellee says:

1. The bond of Henry Watts, collector of the revenue for Lincoln county, to the Governor, was rightly excluded, because it was irrelevant. It had nothing to do with the case. He would have been no less a collector had he never given a bond--besides, one bond was already in evidence

2. The document marked exhibit (A) offered along with the deposition of E. Barcroft, and purporting to be a copy of the delinquent tax list, was rightly excluded, because, first, it is not annexed to the deposition, nor in any manner connected therewith, though declared therein to be annexed; second, it appears on the face of the document, and the certificate of authentication-- that it is interpolated and altered from its original condition.

The defendant, having failed to produce in evidence either the original, or a copy of the auditor's advertisement of sales for taxes, the court was right in excluding the oral testimony of the contents thereof, which the defendant offered to produce. I need not cite authorities to prove that the best evidence the nature of the case admits of, must be given; and that to warrant the introduction of the inferior sort, it must be shown that all proper diligence has been used to get the superior. Here no diligence was used--the party was supine--he and his counsel inquired in some two or three places only; yet the law shows that the advertisement must have circulated co-extensively with the State; every county being entitled to several copies; to say nothing of the general circulation of the paper in which it was printed. But if I be wrong in regard to any one or more of the above points, still, if the court see from the whole record that the judgment is for the right party, the judgment will not be reversed for a harmless error. The court excluded from the jury both the certificate of sale, and the deed made by the auditor to Jos. R. Suggitt, for the land in question, and this was right, because, first, this cause presents to the court precisely the same questions as would have been presented, if the documents had been admitted, and an instruction given that they passed title; second, the auditor's sale to Suggitt, is illegal and void-- because, first, the proceedings being by legislative act in derogation of common right, the statute itself must be strictly construed against the power; second, being ex-parte, and under special authority, the greatest strictness is required, nothing can be presumed in favor of the act, but every requirement of the law must be complied with. 4 Peters' R. 349; 5 Cond. R. 28; 2 Cond. R. 151; 4 Cond. R. 395; 19 Johns. R. 7; 20 Wend. 241; and see especially Cook & Thurston v. Peebly, 8 Mo. R. 344; 4 Hill's (N. Y.) R. 92 and 76; see also this same case in 6 Mo. R. 64. The defendant should have proved that the tax remained unpaid, but has not done it; Barcroft's deposition only says it was not paid to him.

4. The certificate of the auditor, under the act of 3rd of January, 1827, can not help the defendant's title, because, first, the certificate is not such as the law requires--it states broadly that the requisites of the law have been complied with; whereas it should have stated facts, and left the court to judge what the law requires; second, but if it were in the best form, it could only authenticate the facts of which the auditor has official cognizance, and not facts foreign to his office. United States v. Jones, Adm'r of Orr, 8 Pet. R. 375; 1 Mo. R. 537; 2 Bibb R. 573; Acts 1826-7, 149.

5. There is no proof of any legal advertisement of the auditor's sale, and first, the copy stated in the record (as Barcroft's deposition, and in the certificate of sales under the act of 1827), is defective in itself, and there is no proof of its being printed and published; second, it is not proved that three copies were sent to, and set up by the sheriff, as required by the act of 18th January, 1831, § 4.

6. By the copy of advertisement and certificate of purchase, it appears that the auditor sold the land not only for taxes and penalties, but for interest and costs, which was illegal.

7. It appears by record, that the land was sold not only for State and county taxes, interest, penalties and costs, but for two additional taxes imposed by the act 3rd January, 1827, § 20, which additional taxes were illegal, not being ad valorem, as required by the Constitution, art. 13, § 9.

8. The land could not be sold for the non-payment of taxes, until...