see and Blount county, under and by virtue of chapter 120 of the Acts of 1895, entitled 'An act to provide for the assessment and collection of state, county and municipal revenue,' and the act amendatory thereof (Acts 1897, chapter 1, section 43), and in con· sideration of the premises above set out, and the payment of twenty and 44/00 dollars for taxes, interest, costs, and penalties, and the further payment of one dollar for the making of this deed, receipt of which is hereby acknowledged, I, C. T. Cates, Sr., as back-tax attorney for the state and county, having canceled the certificate of purchase before mentioned, do grant and convey unto the said John H. Blankenship all of the right, title, and claim of the state of Tennessee and county of Blount in the above-described property, his heirs and assigns, forever. Given under my hand this 4th day of February, 1898. C. T. Cates, Sr., Back-Tax Attorney.

"State of Tennessee-Blount County. Personally appeared before me Ben Cunningham, clerk of the county court of said county, the within-named C. T. Cates, Sr., the bargainor, with whom I am personally acquainted, and who acknowledged that he executed the within instrument for the purposes therein contained. Witness my hand at office this 4th day of February, 1898. Ben Cunningham, Clerk."

The defendant answered the bill, and denied the ownership of the complainant, and his right to recover. As to the sheriff's sale, he denied that it was legal and valid, for want of notice, and averred that it was only a purchase, at most, of the reversion. He further denies that there was any valid levy made upon the land, and denies the legal notice of the sale. As to the tax title, he denies that the complainant's claim is legal and valid, and avers that the land was never legally assessed for taxes, and that a legal assessment is a prerequisite to a legal and valid taxation of the property and to a sale. As to the sale under the sheriff's deed, on the point of notice we find the notice given was as follows: "By virtue of an order of sale issued by J. C. Stanfield, clerk of the circuit court, on the 15th day of March, 1895, in the case of J. H. Blankenship vs. Samuel French, and directed to the sheriff of Blount county, I will offer for sale for cash in hand to the highest bidder at the court-house door in Maryville, Tenn., on the 27th day of April, 1895, within the legal hours for sale, the reversionary interest that Samuel French has in and to a tract of land lying and being in the 5th civil district of Blount county, Tenn., and bounded as follows: On the north by Samuel Brown, south by J. C. Ellis, east by J. B. French, west by W. R. Snelson,-containing 92 acres, more or less; being the farm on which Samuel French now lives. Said sale will be made to satisfy a judgment in favor of J. H. Blankenship vs. Samuel French, rendered before me, S. M. Morton, J. P., on the 22d day 60 S.W.-33

of January, 1894, and all costs. This March 15th, 1895. Sam Kidd, Deputy Sheriff." It is unnecessary to further consider this claim of title, as complainant's counsel concedes that at most his client only purchased the reversion, and cannot now maintain this action of ejectment for the recovery of the possession.

As to the claim under the tax deed, aside from what is shown in the deed above set out, we find with the record a copy of the assessment indorsed "Transcript of Tax Duplicate," showing the assessment of land tax against Samuel French for the year 1894; and we simply adopt this, without further copying, as it is annexed to the record, as a part of our finding of fact and as a part of this opinion. The principal point made upon this matter is that there are no marks indicating dollars, cents, or any other money values, either as to the value of the land or as to the amount of taxes. As will be seen by reference to this transcript, under the head of "Value, Acres, Land," there appear these figures, "600." Under the heading, "Total Real, Personal, and All Other Property," the same figures appear, each of these figures being in a separate ruled column; and there being nothing to indicate any distinction as to denominations of dollars, cents, or any other unit of money value, either at the top of the column, or preceding or following the figures. It will be noted that the state tax is expressed by the figures |1|80| the 80 being in one column, and the figure 1 in another, but without other separation or distinction as to which was dollars and which was cents, or what denomination of value was meant. The county tax, school tax, and railroad tax are each expressed by figures put down in different columns in the same way. The same is true under the column of "Road Tax." Under the head of "Total Taxes" appear the figures |10|98|| in columns as here marked. This presents the case we find in the record. The chancellor dismissed the bill, and the complainants have appealed.

The defendant's counsel insist that this was not a valid assessment, relying on the cases of Randolph v. Metcalf, 6 Cold. 400, and Anderson v. Post (Tenn. Ch. App.) 38 S. W. 283. Complainant's counsel insist that the defect, if any, is cured by the provisions of the act of 1889 (Code Supp. § 76, p. 58), which provides that no assessment shall be invalid because the number of acres, size, or dimension of any tract, lot, or parcel of land, has not been precisely named, or the amount of the valuation or the tax not previously given, or because the property has been assessed in the name of a person or persons who did not own the same, or because the same was assessed to unknown owners, or on account of any objection or informality merely technical, but that all assessments shall be good and valid. We do not find it necessary, and, this general sub

ject being under the present consideration of the supreme court, which is now sitting at Jackson, as we understand, we prefer not, to pass upon the question of the legality of the assessment as made. Other questions arise on the tax deed under which the complainant claims, which, in our opinion, are simple and clear, and are decisive of the case, and we prefer to place the decision of this case upon those questions.

As stated above, leaving out of consideration the sheriff's deed under the execution sale, which was only of a reversionary interest, and on which it is conceded by complainant's counsel he cannot maintain this action of ejectment, the only evidence of ownership left is the tax deed executed by C. T. Cates, Sr., back-tax attorney. While the record does not show that this deed was objected to as evidence on the trial of the cause in the court below, and we therefore must consider it in, and as admissible evidence for whatever it is worth, still it is clear from the face of the deed that this deed does not show a divestiture of the title of the land in question out of the defendant French, and a vestiture in complainant. The deed is void for want of regularity on its face. While registered official deeds and decrees are admissible ordinarily in evidence without the records upon which they are based, they should show by proper recitals the authority upon which the officer or court acted, and that those preliminary steps necessary to give them the authority to devest title and take property have been properly taken. In other words, the court should always be able to gather from the face of the paper that the officer purporting to convey had in fact the power to do so, and that the steps preliminary to that exercise of power had been taken. If these things do not appear on the face of the deed, then they should be shown by the proper records. See the following authorities: McCarroll V. Weaks, 2 Tenn. 218; Conrad v. Darden, 4 Yerg. 307; Whitmore v. Johnson's Heirs, 10 Humph. 610; Anderson's Lessee v. Williams, 10 Yerg. 234; Verhine v. Ragsdale, 96 Tenn. 542, 35 S. W. 556; Anderson v. Patton, 1 Humph. 369; Michie v. Mullins' Lessee, 5 Hayw. (Tenn.) 90; Hamilton v. Burum, 3 Yerg. 359; Duncan v. Gibbs, 1 Yerg. 260; Marx v. Hanthorn, 148 U. S. 172, 13 Sup. Ct. 508, 37 L. Ed. 410; Lemons v. Wilson, 6 Baxt. 147; Byers v. Wheatley, 3 Baxt. 162; Morgan v. Hannah, 11 Humph. 125; Walker v. Fox, 85 Tenn. 162, 2 S. W. 98; Harlan v. Harlan, 14 Lea, 107; Rogers' Lessee v. Cawood, 1 Swan, 148. It does not follow that because a man is a public officer he has the right and power to convey property of a citizen not consenting; and a deed by such an officer should, by proper recitals, show a proper exercise of the power, or be backed up by a record which shows it. The act of 1895 under which the back-tax attorney acted contained numerous provisions relating to the

collection of taxes, and specific directions to the trustee or tax collector. This was followed by provisions in reference to the appointment by the comptroller of back-tax attorneys. Then followed provisions for statements to be made by the trustee of delinquent taxes on the first Monday in January of each year, to be delivered to these backtax attorneys; the statement, however, not to be delivered until bond had been entered into by the back-tax attorney. The act then provides that all delinquencies should be advertised; then that after the expiration of 30 days from the date of the advertisement in a certain manner, prescribed by the act (being section 85 of chapter 120), the back tax attorney was to advertise the property for sale once a week for four consecutive weeks in some newspaper published in the county, or, if none was published, at the court-house door. There were other details provided for the advertisement. The act then provides, in section 87, that after due advertisement the back-tax attorney, 30 days from that date, giving the date, time, terms, and place of sale, should sell the property at public outcry at the court-house door, for cash, to the highest bidder. The back-tax attorney should then execute and deliver to the purchaser a certificate reciting that he was the highest and best bidder, and then that, after the expiration of two years for redemption, on surrender of certificate he should execute a deed.

Now, with these provisions in view, let us examine the recitals of this deed upon which complainant relies for a recovery; and we find it necessary to note the omission of only a few statements that we deem essential, without suggesting that, if the deed contained the recitals we mentioned, it would then be sufficient. The deed recites that the back-tax attorney on February 3, 1896, according to law, offered for sale the following land, situated in the county, assessed to Samuel French. Now, the deed should have recited that the land had been properly assessed to Samuel French. But, even if this be made sufficient, the deed does not show that the taxes had not been paid by Samuel French. It does not show or recite that the proper steps had been taken for collection. It does not show or recite that the trustee or tax collector had certified or turned over this property to him (the back-tax attorney) as being deiinquent, there being no recital that it had been certified to him. Of course, it does not appear when it was turned over. For aught that appears upon the face of this deed, the back-tax attorney might, of his own motion, and without any statement or certificate from the trustee or collector, have undertaken to sell this property for taxes. We do not intimate, of course, that he did so; but the point is that the deed should show on its face, by proper recitals, or it should be otherwise shown, that the steps which gave the back-tax collector authority

to act had been taken. It does not show that the property had been advertised among the delinquents, as provided by law. It does not show or recite that the sale of the property had been legally or properly advertised, giving time, terms, and place; nor, in fact, that it had been advertised at all. In fact, there is an utter absence of any recital to show any authority in the back-tax collector to act in the matter, except the mere fact that he was a back-tax collector. The deed does not show to whom the property was sold. It does not show how much was paid for the property. It is true, the deed recites that the back-tax attorney made a certificate of purchase to John H. Blankenship; but it does not show that it was sold to and bid in by John H. Blankenship, and it does not show that Blankenship or any one else paid a cent for the land. It recites that the backtax attorney "offered the land for sale for the enforcement of the lien for taxes amounting to $20.44," but does not show or recite that any one bid on it, that he sold it to any one, or that any one paid a cent for it at the sale. The deed recites that the back-tax collector, "under the provisions of the act of 1895, and in consideration of the premises and of the payment of the $20.44," makes the deed; but whether this payment was for the certificate, and made at that time, or whether this was the sum the land sold for, does not affirmatively appear. Under the provisions of the act of 1895 the law did not then provide that any one thereafter might come up and pay the amount of the taxes, interest, penalties, and costs, and take a deed for the land; and, for aught that appears on the face of this paper, such might have been the case. The point is that the deed does not show that at the sale made any one bid in the property, or that it was sold to the highest bidder for cash, and that the cash was paid. But, coming to the conveying clause of the deed, we find what we regard as an absolutely fatal defect, conclusive of the case. This is as follows: "I, C. T. Cates, Sr., back-tax attorney for the said state and county, having canceled the certificate of purchase before mentioned, do grant and convey unto the said John H. Blankenship all the right, title, and claim of the state of Tennessee and the county of Blount in the above-described property, his heirs and assigns, forever." Now, there is no attempt here to convey the property in fee. At the most, the attempt is only to convey the right, title, and claim of the state of Tennessee and the county of Blount, which, at most, was the state's lien and claim for taxes. If the deed had the legal effect of conveying anything,-which we do not think it did,-it simply conveyed a claim or lien for taxes, which might thereafter be enforced by a bill properly filed for that purpose; but this is not such a bill, but is simply an ejectment bill. The deed does not purport to convey the fee or any other interest in the property, except the state's

claim and lien. The state and the county of Blount at that time were not the owners of the property, and had no interest in it, except the claim and lien for taxes in the state and county, and the right of eminent domain existing in the state. We think it entirely clear, in the first place, that this deed is void on its face. It shows no authority whatever for the back-tax attorney to act, and no authority is otherwise shown. So far as can be gathered from the deed, C. T. Cates, as back-tax attorney, had no more power, right, or authority to sell this land than any other stranger to the title. But, besides this, the deed does not purport to convey the title of the property. For these reasons, we are of the opinion that the complainant has wholly failed to show any right of recovery, and the bill was properly dismissed by the chancellor, and his decree is affirmed, with costs.

In the above discussion we have simply referred to authorities that enunciate principles which we deem controlling, without elaborating our own views, or adverting to the policy and reasons upon which the rules are founded. We also failed to mention the provisions of the act of 1895 under which the deed in question was made, relating to such deeds; and, on reflection, we deem it best to briefly explain our reasons, and to note that we have not overlooked the provisions of the act of 1895 relating to these deeds. Section 88 provides that, after sales have been made by a back-tax attorney, he shall execute and deliver to the purchaser a certificate reciting that he was the highest and best bidder, and so on. It then provides that at the expiration of two years, the property being unredeemed, upon the surrender of the certificate the back-tax attorney shall make a deed, "the title under which shall be valid against all claimants, and the fact that any property is in litigation shall not prevent the back tax attorney from selling the property under the aforesaid advertisement, and said deed shall have the same force and effects of deeds from courts of record in the state." The reason and policy upon which the decisions which we have referred to in the previous part of this opinion are based are so obvious that we hardly deem it necessary to note them. As of late years, however, there has been a disposition, in the framing of tax laws by experts upon this question, and in practices which have grown up under these laws, to ignore certain principles which are the very life of our American system of government, and which in fact go back to the days of Magna Charta, whose beneficent principles were inherited by the American colonists, it may not be amiss to briefly note the underlying principles. The vital principle referred to is expressed in section 8 of article 1 of the constitution of Tennessee in this way: "That no man shall be taken or imprisoned, or disseized of his freehold, liberties or priv

ileges, or outlawed or exiled or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers or the law of the land." This principle, the result of centuries of bloodshed and struggle by the liberty loving Anglo-Saxon, has always been jealously guarded and upheld by the courts; and, for this reason, whenever a claim was set up by any one to property of another taken from him in invitum, the courts have always compelled the party rely ing upon such claim to show that the proceedings upon which such claim was based were in all respects regular, and that the law had been complied with. The protest of centuries of struggle, as reflected in the courts, has been against arbitrary seizure and confiscation of the property of the citizens by any official, high or law, and for these reasons the courts have always insisted upon the observance of every safeguard provided by law for the protection of the rights of the citizen. So strict were our courts in the enforcement of this principle that it became proverbial, until the legislation of recent years, that almost no tax title obtained under the summary proceedings provided for the collection of taxes had ever stood the tests of the courts. Besides this, under all proceedings where the property of the citizen was taken under a judgment, execution, and levy, it was required not only that the sheriff's deed under which a claim was made should by proper recitals assume and show every material fact necessary to make a valid title, but, besides this, it was required that the record upon which such a deed was based must accompany and correspond with the recitals of the deed; and such were the holdings under our former tax laws. See the authorities above cited, and the authorities referred to in Meigs & W. Dig. § 2618, and following. It has always been required that in all summary proceedings by judgments, even in courts of record and of general jurisdiction, every material fact shall be assumed and appear on the face of the judgment or decree. So far as we know, with the single exception of decrees of courts of record, coming within the provisions of chapter 6, § 48, of the act of 1801, referred to in the case of Whitmore v. Johnson's Heirs, prior to late legislation upon the subject of taxation, it has always been required that the regularity of proceedings in invitum shall be shown not only by proper recitals on the face of the deed or decree, but shall be backed up by proper record. Under that act it was provided, and it has been held, that a decree devesting title in real estate, and registered as prescribed, may be admissible in evidence by itself without being backed up by the record of the entire cause; but in such cases it has always been held that such a decree must assume and recite upon its face the performance of every condition precedent and of every material requirement for the validity of the decree. See the

cases of Whitmore v. Johnson's Heirs and Verhine v. Ragsdale, supra. See, also, the case of Michie v. Mullins' Lessee, 5 Hayw. (Tenn.) 90, and Marx v. Hanthorn, 148 U. S. 172, 13 Sup. Ct. 508, 37 L. Ed. 410. In the case of Whitmore v. Johnson's Heirs it was said that the decree in question, although a decree of a court of general jurisdiction and of record, must show on its face and recite every essential requirement of the statute showing its validity. Now, giving the act of 1895 the most favorable construction possible for such deeds, at the most it can only be said it places them upon an equality with decrees of courts of record. Its language is, "of deeds from the courts." But, as has been seen, even such decrees are required to recite and show the performance of every material condition precedent. In the case of Marx v. Hanthorn, 148 U. S. 172, 13 Sup. Ct. 508, 37 L. Ed. 410, it was in fact held that these legislative provisions as to the validity of tax deeds were not intended for anything more than a regulation of the rules of evidence as to the regularity of such proceedings, and that if they were otherwise intended they would be violative of the fundamental principles of our government, handed down to us from days of Magna Charta. So, as we have indicated above, to hold that a back-tax attorney or any other official can simply make a deed to a man's property, and that that deed shall have the effect of devesting the citizen of his property, without a single recital going to show that the authority had been exercised in compliance with the provisions of the law, would, in effect, be to deprive the citizen arbitrarily of his property. We do not wish to be understood as holding that, if the deed had contained all the recitals whose omission we have noted, it would be valid, unless backed up by proper record showing that the steps had in fact been taken. But we do hold that the deed not reciting anything to show that the back-tax collector had authority to act, and there being nothing else to show it, the deed is fatally defective on its face, and did not convey the title or interest of defendant. And, as stated above, for these reasons the decree of the chancellor dismissing complainant's bill will be affirmed, with costs. All concur.

Affirmed orally by supreme court, October 20, 1900.

ATKINSON et al. v. FITZPATRICK.1 (Court of Appeals of Kentucky. Feb. 1, 1901.) APPEAL LIABILITY ON SUPERSEDEAS BONDFAILURE OF SHERIFF TO LEVY EXECUTION.

Where a judgment for the recovery of personal property, or for its value as fixed in the judgment, was affirmed on appeal, the fact that the sheriff failed to take possession

1 Reported by Edward W. Hines, Esq., of the Frankfort bar, and formerly state reporter.

of the property under an execution placed in his hands when he might have done so, or neglected to levy on the property to satisfy the money judgment, does not preclude plaintiff from recovering on the supersedeas bond executed on the appeal, unless the sheriff was prevented from proceeding with the execution by the direction of plaintiff or his attorney, and the lien was thereby lost.

Appeal from circuit court, Bell county. "Not to be officially reported."

Action by Atkinson & Co. against J. G. Fitzpatrick on a supersedeas bond. Judgment for defendant, and plaintiff's appeal. Reversed.

N. B. Hays, for appellants. A. K. Cook, for appellee.

HOBSON, J. Appellants recovered in the Bell circuit court a judgment against A. H. Rennebaum for certain personal property or its value, $800, and $100 as damages for its detention; also costs, $29.10. Rennebaum, with appellee as his surety, superseded the judgment, and took an appeal to this court, which affirmed it, with damages, on May 12, 1898. The mandate of this court having been filed in the Bell circuit court, an execution .was issued on the judgment on June 22, 1898, commanding the sheriff of Bell county to cause to be made of the estate of Rennebaum the sum of $800, or the possession of the property; also the further sum of $100 dam-. ages, with interest, and the costs. This execution was returned on June 23, 1898, by the sheriff, as follows: "After making diligent search, the property named herein cannot be found as a whole, the defendant A. H. Rennebaum stating that a part of the property was in Knoxville, Tennessee; hence no delivery can be made of said property. Nor can any property be found in Bell county belonging to the defendant out of which to make the sum of $900 and interest, or any part of same." This suft was then filed by appellants on August 16, 1898, to recover of appellee, as surety in the supersedeas bond, the amount of the judgment. Appellee, for defense to the action, alleged, in substance, that the return of "No property found" on the execution above referred to was false, and made for the purpose of defrauding him, by the procurement of the appellants' attorney; that the sheriff acted under the direction of the attorney in making the return, and that the attorney had thus subjected the property to an execution in favor of another creditor, so as to throw the entire loss of the debt in controversy on appellee as surety in the supersedeas bond. In Rennebaum v. Atkinson, 52 S. W. 828, it was held by this court that, if the writ failed to produce all the property recovered, appellant might refuse to accept part of it, and collect the assessed value of the whole. It was also held in that case that appellant might, at its election, take out an execution for the assessed value of the property, and not for the possession of the specific property, if it preferred to do so.

Appellant might have brought this suit upon the supersedeas bond for the amount of the judgment without taking out any execution upon it. It is clear from the evidence that all the property recovered was not then on hand, and, as it was not obliged to accept part of the property, the sheriff's return, so far as the specific property was concerned, was undoubtedly correct. The execution commanded him, however, to make the money, and it is insisted that his failure to levy on the property and sell it for the debt was due to the direction or procurement of appellant's attorney, who had charge of the collection of the judgment, and desired to subject the property to another execution. The property having been afterwards sold under the execution of the other creditor, it is urged that the sureties in the appeal bond were released. There is absolutely no proof in the record that the attorney directed the sheriff, or interfered with him in any way, in the execution of the writ, or gave him any instructions in regard to what he should do. The testimony of the sheriff and the attorney both is positive on this subject, and their statements are uncontradicted. The proof shows that the greater part of the property recovered was, when the writ was issued, at the mill of Rennebaum in Middlesboro; that the sheriff went to the mill with his execution, and Rennebaum told him that the rest of the property was in Tennessee; that the sheriff informed him he could not accept part of it, and thereupon returned the execution under the impression that the property was covered by a mortgage for a large amount, and so could not be sold under the execution. The sheriff asked the appellants' attorney to write his return for him, and the attorney did this; a thing which they state was not uncommon. This was on June 23d. The action before us on the bond was then filed on August 16th, and process served. The property remained where it was, and nothing more was done until November 1st, when the attorney gave Rennebaum this paper: "This is to certify that Atkinson & Co. does not claim any lien of any kind against the mill that was sold to them for which they have a judgment for the delivery of said mill or its value. They (the said Atkinson, Yarber, and others) are looking to the bond for indemnity. The bond referred to in this writing is the supersedeas bond executed when the case was appealed by A. H. Rennebaum, with J. G. Fitzpatrick, J. F. Neal, and J. C. Colson as surety." This paper was given after the suit on the bond was brought, and after appellee had filed his answer in the case. The purpose of the paper appears from the evidence of the attorney to have been to avoid the appearance of injustice to Rennebaum, and to let it be known that he had elected permanently to collect the money on his judgment, and not to take the specific personal property. This testimony is confirmed by the proceedings in the case, from which it ap