said William Adams, sheriff and ex-officio collector of said county has expired, and the said James M. Hamilton has been duly commissioned and sworn as sheriff of said county, and is now acting as such, and is thereby ex-officio collector for said county; and, whereas, also the space of one year has elapsed since the sale of said tract of land as aforesaid, and the same is still unredeemed; and, whereas, the said Jesse Brashears has this day produced and delivered to me, the said James M. Hamilton, as sheriff and ex-officio collector as aforesaid, the said certificate of purchase by the said Elijah B. Alston, as aforesaid endorsed and assigned to the said Jesse Brashears as aforesaid, and requested me to execute and deliver him a deed for said tract of land therein described. Now, therefore, in consideration of the premises aforesaid, and of the said several sums of money, and of the sum of one dollar to me in hand paid, I, the said James M. Hamilton, as sheriff and collector as aforesaid, do hereby bargain, grant, sell and convey to the said Jesse Brashears all the right, title, claim, and interest of the said Joseph Stout, or of any other person or persons whatever, which I might in and by the premises aforesaid legally bargain, grant, sell and convey, in and to the said south-half of the north-east quarter of section number one, in township number nine, north of range number twenty-five west, containing sixty-three acres, and twenty-five hundredths of an acre.

In testimony whereof," &c., &c.,

JAMES M. HAMILTON, Sheriff. [SEAL.]" To which deed is appended certificates, in the usual form, showing that it was acknowledged before the clerk of the circuit court of Johnson county, on the 4th day of March, 1848, and filed with the Recorder of said county, to be recorded, and recorded on the same day.

To the reading of the above deed in evidence, the defendant's attorney objected on the following grounds: 1st. It was not properly authenticated; 2d. Its execution was not proven either by oral testimony, or by any sufficient certificate of acknowledgment; 3d. It is not recited and shown in and by said deed that William Adams, the ex-sheriff, had the power and authority to

Hogins vs. Brashears.

[ JANUARY sell the land therein mentioned after his term of office had expired; 4th, No authority is shown for the sale of land for taxes on the day of sale or any reason assigned why said land was not sold the first Monday of November, the time fixed by law for the sale of lands for taxes; 5th: It appears from the face of said deed, that the land was sold by Adams, after his term of office had expired; 6th: The deed does not set forth all the matters and things essential to the validity of the sale; 7th; The recitals in said deed, admitting them all to be true, do not show that the sta tute under which the sale was made, was observed and complied with, or that the person selling had sufficient authority to sell; and, 8th. Said deed is informal, insufficient, &c.

The court overruled the objections, and permitted the deed to be read in evidence,

Plaintiff then proved that defendant had possession of the land described in the declaration, demand of possession and refusal, before suit brought, and that defendant had cut from the land, and converted to his own use $80 worth of timber.

Upon this evidence, the court found for, and rendered judgment in favor of the plaintiff; defendant moved for a new trial, which was refused by the court, and he excepted and set out the evidence.

W. WALKER, for the appellant. The sheriff actually in office being the only person authorized by law to sell lands for taxes, the deed, under which plaintiff claimed title, is void upon its face: because it recites that the land thereby conveyed was sold by the ex-sheriff after his term of office had expired. Rev. Stat., ch. 128, secs. 95, 98.

The most liberal construction which could be given to the act entitled: "An act for the relief of Henry A. Engles, late sheriff of Independence county," approved January 12, 1843, could not give validity to the deed, because it does not show the facts authorziing the sale at the time it was made.

FOWLER, Contra.

Mr. Justice SCOTT delivered the opinion of the Court.

This was an action of ejectment for a tract of land claimed under a tax collector's deed, tried in the court below upon the general issue.

At the trial there, the plaintiff was allowed to read in evidence, against the objection of the defendant, a certified copy of an entry made in the register of certificates granted to purchasers of public lands at the Land Office at Fayetteville, by which it appeared that one Joseph Stout had purchased the land in question from the General Government, in January, 1839; and also a paper purporting to be a duly recorded deed executed by one Hamilton as sheriff and tax collector of Johnson county, granting the land in question to the said plaintiff upon the surrender by him of a certificate of purchase at a tax sale, that, some five years before, had been issued by one William Adams, as ex-sheriff and ex-officio tax collector of Johnson county, to one Alston, who had assigned it to the plaintiff.

The main question that arises in this case, is as to the admissibility in evidence of these two papers; the other suggested, as to a formal defect in the bill of exceptions, being untenable as we think.

As to the first mentioned paper, it is, upon its face, within the provision of our statute (Dig., p. 490, ch. 66, sec. 6.) And as it does not appear that any suspicion was thrown upon its authenticity, or that there was any such specification of want of authentication as to bring that question here for revision, we must presume that the court below used every proper precaution to prevent being imposed upon by a forged instrument, and shall therefore hold that, in allowing it to be read in evidence, there was no error.

With regard to the reading of the alleged deed, however, a more difficult matter is to be determined, involving not only its authenticity, but its validity. As to the former, however, it seems well enough authenticated, because, purporting to be a deed for lands of a non-resident sold for taxes, it was sufficient that it was “acknowledged and recorded as other conveyances of land," (Dig.

Hogins vs. Brashears.

[JANUARY p. 888, ch. 139 sec. 112); and it was not necessary that it should have been acknowledged in the same manner as deeds for land sold under execution, as is directed for lands of residents of the county, where sold for taxes. (Dig., p. 885, ch. 139, sec. 91. Ib. 505, sec. 62).

But as to the latter, although it is the policy of our laws to uphold tax titles by every liberal intendment consistent with the rules of law, as is manfest by the provision of the statute that "No exception shall be taken to any deed made by a collector for lands sold for the payment of taxes, but such as shall apply to the real merits of the case, and are consistent with a liberal and fair interpretation of the intention of the General Assembly," Dig., p. 889, sec. 113), and from other provisions of the revenue law and of the law for the limitation of suits for land; (Pamph. Acts of 1850, p. 145,) nevertheless, we have no authority to depart from these rules of law in order to sustain any pretended sale of property by a collector of taxes under color of his office beyond the true boundary of his authority. And this, in reference to the sale of lands, is no general authority to sell, but only to sell such lands as are liable by law to be sold for taxes; and these only in the manner prescribed by law. not only pass his defined boundary in the act of selling, but in the mode of the act; and when he does so, his acts, although under color of authority, are in law but the private acts of a private person.

And thus he may

The party, who sets up title, must furnish the evidence necessary to support it. When, for this purpose, he relies upon a tax collector's grant, whose authority is not general but limited, as we have seen, both in its scope and in the mode of its exercise, to sustain its operative force as such, he must exhibit all the substantial pre-requisites to his authority to make the grant. Because it is alone from these substantial pre-requisites, that the authority to make the grant can spring, and beyond their pale it can have no vitality. Hence the rule in such cases of authority, whether entrusted to an officer or to an individual, that it must be strictly pursued and strictly proved. And hence, too, the obliga

tion upon one setting up such a grant to show the performance of these substantial pre-requisites, nothing being presumed as to their performance.

Nor has our legislature changed these general rules of law as to tax collectors' authority, otherwise than in prescribing the mode in which the performance of these pre-requisite acts shall be shown by recitals to be contained in the deed prescribed, and declaring its effect, when so executed, both as an operative grant and as an instrument of evidence to sustain its operation as such. And, having done so, has left no ground to presume that any other mode of sale and grant was intended to be set on foot or provided for, for lands sold for taxes by the tax collectors.

When tested by these principles, the recitals contained in the alleged deed in question, after allowing every aid that can be afforded them by the liberal provisions of the statute above quoted, fall far short of a statement of all the substantial pre-requisites of the tax collector's authority to sell and convey the land in question. And to this extent at least, the recitals in such a deed must be regarded as one of its essential elements.

The sale was not made on the first Monday of November, the day fixed by law for the annual sales of non-resident's lands, (Dig., p. 886, sec. 95), and it was not lawful for it to have been made on any other day, unless "upon good cause shown," the county court had fixed another day in an order, in which the time so fixed had been expressed. (Ib., sec. 129). And there is no recital in the alleged deed that any such order was ever made.

Nor can this substantial omission in the statement of authority to sell on the day on which the sale of the land in question seemed to have been made, be in any way aided by all the possible benefits of the act for the relief of Henry A. Engles, approved the 12th January, 1843, (Pamph. Acts of that year, p. 197), because that act does in no way necessarily dispense with the action of the county court in fixing a day other than the regular one appointed by law for the sale of non-residents' lands: On the contrary, seems rather to confirm it in the provision that Engles should "have full power to coerce payment by all the or