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It has been claimed that in Indiana a stricter rule obtains as to the necessity of stating the facts which give jurisdiction to the court giving judgment and making the order of sale of land for taxes, than in other States, and that the rule in that State is, that all the facts in reference to the tax proceedings anterior to the judgment must appear of record, and not merely the facts necessary to give jurisdiction. But an examination of the cases will show that the ruling was in a direct proceeding to correct the judgment of the court, upon an appeal to a superior tribunal, and not in a suit where the judgment was attacked collaterally.1

It has been stated that one of the material facts to give jurisdiction for the sale of lands, is that the collector's report or delinquent list should show that there were no goods and chattels out of which the taxes could be made. There are some exceptions to this rule. In Illinois, the form of the report is prescribed by statute, and although it does not show the insufficiency of goods and chattels, if it follows the form it is good. So too in those States where the real estate of non-residents is proceeded against in rem, and it is not even necessary to give the name of the owner on the assessors' list, in such States, as against such lands. It is also unimportant for the report to show that the taxes could not be made out of the personal estate of the owner, to give jurisdiction.3

Judgment, how Attacked Collaterally.-The record of a court imports absolute verity, and where it is pleaded, it is tried by an inspection of the record itself. To be attacked collaterally, it must be shown by the face of the record that the court rendering the judgment did not have jurisdiction. Where the court is one of inferior jurisdiction, or a court of general jurisdiction with special power as to tax proceedings, this is accomplished by pointing out the absence of the facts necessary to give jurisdiction, for as we have seen heretofore, unless these facts appear the judgment is a nullity. In California, under the tax system in that State, the judgment against land for the taxes due thereon is regarded as that of a court of general jurisdiction. The jurisdiction is presumed, and those who desire to attack it collaterally must show affirmatively from the face of the record that the court did not have jurisdiction. In that State in suits

1 Dentler v. State, 4 Blackf. 258; Smith v. State, 5 Blackf. 65; Williams v. State, 6 Blackf. 36.

Taylor v. People, 2 Gilman, 349; Job v. Tebbits, 5 Ill. 382; Morrill v. Swartz, 39 II. 108. If a party promise to pay while the warrant is in force, and refuse afterwards, he cannot deny delinquency. Dunning v. West, 66 Ill. 366.

3 Kinsworthy v. Mitchell and Wife, 21 Ark. 145; Alvord v. Collin, 20 Pick. 418. Thatcher v. Powell, 6 Wheat. 119, and cases in notes 3, p. 281, and 1 and 2, p. 282, ante.

for taxes, if the land is assessed to an "unknown" party, the suit is brought in a fictitious name and against the land itself. The summons is by publication in a newspaper. A complaint alleged that the land was assessed to "unknown owner and to all owners and claimants unknown." The decree of the court in that suit recited, that it appeared to the satisfaction of the court "that all owners and claimants of the property above described have been duly summoned to answer the complaint herein, and have made default in that behalf." In a tax title arising under this decree, it was said this record was conclusive that the court had acquired jurisdiction of the owner of the premises. So in a suit against William Fordener, as owner of a lot, and against the lot in rem, in the publication of the summons the name of Fordener was omitted and the judgment of the court contained the same recital, but it was not allowed to be attacked collaterally for this omission. Under the system of tax proceedings in that State, when under the statute suit is brought for the taxes, both against the owner and the property, the jurisdiction which the court. acquires in such proceeding is the same that it has over the citizens of the State as to all ordinary subjects of litigation, and the court being a court of general jurisdiction, it will be presumed to have done all things rightly, and those who deny the validity of its judgments collaterally must show affirmatively from the record the want of jurisdiction. Wherever this system prevails this will be the rule, but in most of the States, the system is a different one, and the court that enters judgment against the land and makes the order of sale is either an inferior court, or a court of general jurisdiction with special authority, and in such case nothing is presumed, but the record must show all the facts necessary to jurisdiction, or the judgment is a nullity.

§ 112. Notice of the Sale.-The next step after the judgment of condemnation and order of sale, where that is required, or after the return of the delinquent list where there is no judicial condemnation, is a notice of the sale. The sheriff, collector or other officer who is authorized to make the sale by the statute of the particular State, is in either case a ministerial officer; he is not a judicial officer vested with discretion; he has a naked power not coupled with an interest. If he acts under the order of a court, he must do what his precept commands him; if under the power vested in him by the statute, he must pursue the authority given him strictly. The result of the proceedings is to divest title in a summary manner, and in the latter case a

1 Eitel v. Foote, 39 Cal. 439; Hahn v. Kelly, 34 Cal. 391.
'Reilly v. Lancaster, 39 Cal. 354; see Mayo v. Hanie, 50 Cal. 70.

failure to perform any of the acts required by the statute avoids the sale of the land.1 At one period, in North Carolina, a different doctrine prevailed, but later cases are in accord with the general rule that all the acts to be done by the officer who makes the sale are mandatory and not directory, and that a failure to perform these acts in the manner prescribed by the statute makes the sale invalid, and may be shown in any collateral proceeding.

Time when given.-The notice is not to be given until all precedent acts required by the statute have been done as prescribed. When land was not allowed to be sold for taxes until two years after the year for which they were assessed, and the notice of sale was published December 6, 1822, for taxes of year 1820, the sale under such notice was void. So where the statute requires the taxes to be due and unpaid for a certain period, as two years, or nine months, this period must elapse before the notice is published, for the owner has the right to pay up to that period, without the additional expense of the notice. Or where the delinquent list is delivered to the secretary of State, who is to receive payment for a certain period, and then redeliver the list to the collector before sale, there must be a redelivery before the notice is given. The notice is an official act, and it must so appear on its face; the name of the collector attached to the notice, without anything in the notice to show his official character, is not sufficient. But if the official character appear, a mistake as to the middle name is unimportant, as there is but one Christian name in law. The question as to whether the officer must be an officer de facto or an officer de jure, was considered in § 106, and the principle announced there that if the officer be one who comes into office with color of authority, although he may not be an officer de jure, in all collateral proceedings his acts are as valid as those of an officer de jure. In a late case in Connecticut the doctrine announced was sustained after a full and elaborate review of all the authorities. The statute

1 Williams v. Peyton, 4 Wheat. 79; Early v. Doe, 16 How. 610; St. Anthony's Falls, &c. v. Greeley, 11 Minn. 321; Allen v. Smith, 1 Leigh, 231; Brown v. Veazie, 25 Maine, 359; Farnum v. Buffum, 4 Cush. 260; Luffborough v. Parker, 16 Serg. & Rawle, 351; Stiles v. Wier, 26 Miss. 187; Minor v. Natchez, 10 Smedes & M. 246; Wilkin's Heirs v. Huse, 10 Ohio, 139; Elliot v. Adams, 24 Ala. 508.

2 Martin v. Lucey, 1 Murphey, 311.

Love v. Wilbourn, 5 Ired. 344; Kelly v. Craig, 5 Ired. 129.

Ronkendorff v. Taylor, 4 Pet. 364.

'Hobbs v. Clements, 32 Maine, 67; Orr v. Travacier, 21 Iowa, 68.

* Cambridge v. Chandler, 6 N. H. 271; Homer v. Cilley, 14 N. H. 85; 8. P. Hannel v. Smith, 15 Ohio, 134.

Spear v. Ditty, 9 Vt. 282.

Isaacs v. Wiley, 12 Vt. 674; Franklin v. Talmadge, 5 Johns. 84.

authorized the clerk of the court, when the judge of the court was sick or absent, to call a justice of the peace to hold the court during the temporary absence or sickness of the judge. The judgment rendered by the justice was not allowed to be attacked collaterally. It was said that whether the law was constitutional or not, or the call was or was not in accordance with the statute, the justice of the peace was a judge de facto of that court, and the judgment could only be corrected for error in the mode prescribed by law, in some superior tribunal.1

What the Notice should Contain.-If a form of notice is prescribed by the statute, it must be followed, and the officer has no discretion to omit any part of it. If no form is prescribed, but the statute states what the notice should contain, all the facts required by the particular statute must appear in the notice. Those usually required are the name of the owner, the delinquency of the tax, and the period for which it has been delinquent, that no goods could be found out of which to make the tax, the year of the tax, its amount and its purpose, the time and place of sale, and a description of the land. If other particulars are required, the statute must be substantially followed.

Name of Owner.-Where the statute required the notice to be in the name of the party to whom the land was assessed, and it was in the name of Edward Whitehead, by whom the land was entered, such notice was held insufficient. So under a similar statute, where the land was assessed to William S. Homer, but in the notice he was styled Henry S. Homer, when in reality Charles S. Homer was the person intended to be assessed, such a notice was held to be defective, notwithstanding another statute provided that the tax might be collected from the person intended to be taxed, even if there was an error in the name of the person assessed, provided he was taxable and could be identified by the assessors. An omission of the name altogether is fatal to the notice, where the statute requires it to be in name of the owner.5 So a variance from the assessment-as where land was listed as belonging to Allen and James Gillespie, and advertised as land of Charles Gillespie-is fatal to the sale. But where the proceeding is against the land in rem, as in the case of land owned by

1 State v. Carroll, 38 Conn. 449.

Brown v. Hutchinson, 11 Vt. 569; Chandler v. Spear, 22 Vt. 388.
Styles v. Weir, 26 Miss. 187; s. P. Gardner v. Brown, 1 Humph. 354.

4 Seargeant v. Bean, 7 Gray, 125.

* Shimmin v. Inman, 26 Maine, 228; Corp. of Washington v. Pratt, 8 Wheat. 681. Watts v. Gilmore, 2 Yeates, 330.

non-residents, or where the owners are unknown, in such cases if the land itself is accurately described, the name of the owner is unimportant, and an error as to the name does not affect the validity of the notice.1 Where lands were assessed and advertised in the name of James Thomas, who was dead at the time of the assessment, the error was considered as cured by a statute which provided that "no sale of real estate for taxes shall be impaired or made void by reason of the property not being assessed or advertised in the name of the lawful owner thereof, provided it be advertised as directed above." It was directed to be advertised in the name of the person to whom it was assessed. By statute in North Carolina the mortgagee is regarded as the legal owner of land, and is entitled to a personal notice of the levy and sale of land (on which he has a lien) for unpaid taxes. A notice to one of several heirs, owners of the land, is not good.'

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Delinquency of the Tax.-This must be stated if required by the statute, and also the length of time delinquent, and the fact that no goods can be found.5

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Description of the Tax.—When the purpose of the tax was required to be stated, and the purpose authorized was for "making and repairing roads and building bridges," in the notice the purpose stated was "for the purpose of making, repairing and building bridges," the defect was fatal. So the description of a tax as a "money tax," when it is in fact a State, county, and school tax, is a fatal defect." But a transposition of the sums due for State and county taxes, where the sale is for both, is not fatal. Where the statute required the notice to state the amount of taxes due, a number of lots owned by the same person were advertised for sale, stating only the aggregate amount of the taxes due on all the lots, and the notice was held not sufficient; it should have stated the amount due on each lot. Under the same statute, where the sale was for taxes of the years 1820 and 1821, and the notice described the taxes as, "for taxes due thereon up to the year 1821," it was considered a sufficient description,10 the court saying that "if the taxes were due and the property liable to be sold for them, it can be of no importance to the purchaser to have a mere technical description of the taxes." A material variance

1 Alvord v. Collin, 20 Pick. 418; Daily". Newman, 14 La. Ann. 580. 'Holroyd v. Pumphrey, 18 How. 69, 71.

4 Thurston v. Miller, 10 R. I. 358.

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Langdon v. Poor, 20 Vt. 13.

Scott v. Watkins, 22 Ark. 556.

3 Whitehurst v. Gaskell, 69 N. C. 449.

5 Hobbs v. Clements, 32 Maine, 67.

Pierce v. Richardson, 37 N. H. 314.

Corp. of Washington v. Pratt, 8 Wheat. 681, 688.

10 Ronkendorf v. Taylor, 4 Pet. 349, 365; Durham v. People, 67 Ill. 414.

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