between the actual tax due and the amount stated in the notice avoids the sale, as where the tax was $3.30 and the amount in the notice of the sale was $4.12.1

time of sale is essential to be

Time and Place of Sale.-The stated, and so is the place of sale. But where the notice stated that the sale would take place "at the court house in Warren," it was sufficient, the court taking judicial notice of the fact that there was no town of Warren in Ohio except in Trumbull county. The court gave weight to the fact that the preposition "in" was appropriate for a sale in a town, as distinguished from a place not a town. If no place is designated, the sale under such notice would be void, and the error is such a one as is not cured by a statute providing that "no error or informality of the officer intrusted with the same, not affecting the substantial justice of the tax, shall invalidate the assessment." Where the auditor of the State was required to publish each year a statement of the lands liable to be sold for taxes, and a notice of the sale, at such public and convenient place at the seat of justice of the county as the county treasurer may select; in giving this notice the auditor followed the words of the statute, stating the name of the county, and that the sale would be at such public and convenient place in the village of Flint as the county treasurer may select, the notice was deemed good; it was not necessary to designate at what locality at the county seat the sale would take place."

Description of the Land.—The object of the description is to inform the owner that his land is to be sold for the unpaid taxes due thereon, and that those interested as purchasers may be enabled to identify the land to be sold. The description should correspond with the description on the roll, and no element of the description in the roll should be omitted, but additional particulars which serve to identify the land will not vitiate. If the description is such as to mislead, by matter of false or inaccurate description, the sale under such notice will be void, or if it is not such as to enable the owner or others interested in it to identify it, it is insufficient, and the sale will be void. For examples of descriptions which are valid, and those which are invalid, the reader is referred to § 95 and the authorities there cited. No description which is invalid on the assessment roll would be good in a notice of sale.

1 Alexander v. Pitts, 7 Cush, 503.

2 Wilkins' Heirs v. Huse, 10 Ohio, 139.

3 Shelden v. Coates, 10 Ohio, 278; Blalock v. Gaddis, 33 Miss. 452.

4 Prindle v. Campbell, 9 Minn. 212.

5 Clark v. Mowyer, 5 Mich. 562; Wisner v.. Davenport, Id. 501.

Notice, where and how published or posted.-All the provisions of the statute on this subject must be strictly followed. The statute required the notice to be inserted in the newspaper of the public printer of the State. The notice was inserted three times in the "Portland Advertiser and State Gazette," which was the newspaper of the public printer. When the first two publications had been made, but before the third was made, the legislature declared that paper to be no longer the State paper; and the publication was held insufficient.1 But where the statute required the notice to be published in a paper styled the "Vermont Republican," and the name of the paper was afterward changed to the "Vermont Republican and American Yeoman," and the notice was published in this paper, the publication was sufficient; the addition to the name of the paper did not affect its identity."

Where the statute required the notice to be published in a newspaper at the seat of government, and in a newspaper published in the county in which the lands are situated, and if none were published in the county, then in a paper of general circulation in the county, and there was no paper published in the county, the notice was published alone in the paper at the seat of government, and it was claimed to be a compliance with the statute, because that paper was one of general circulation in the county. The court was of opinion that the paper of general circulation must be one other than that at the seat of government. So where the statute requires notice in some newspaper of general circulation in the county, and if none, by notices at public places, proof that no paper is published in the county, and of the posting of notices of sale at public places in the county, is not sufficient. There may be a paper of general circulation in the county, though none is published there."

If the statute requires the notices to be printed, a posting of written advertisements is not sufficient,5 or if the notice is to be published in several languages, the failure to comply with such a requirement is a fatal defect in the notice. A publication in extras circulated with the paper designated by law is a good publication."

The notice is sometimes required to be posted at a public place. In a case where the land was situated in a town uninhabited, and the

'Bussey v. Leavitt, 3 Fairf. (12 Me.) 378.

Hughey's Lessee v. Horrell, 2 Ham. (Ohio), 231.

Pierce v. Sweetser, 2 Carter (Indiana), 649.

5 McPike v. Pen, 51 Mo. 63.

Isaacs v. Shattuck, 12 Vt. 668.

Young v. Martin, 2 Yeates (Penn.) 312; Delogny v. Smith, 3 La. 418. 'Davis v. Simms, 4 Bibb, 465.

notice was posted on a board fixed in the sand by the bank of the Androscoggin river, this was not considered a public place. In another case, where the notice was to be published three successive weeks, it was posted at a tavern on the eleventh of January, 1820, the sale to take place on the ninth of March, 1820. On the eighteenth of January the building on which it was posted ceased to be a tavern, but the person who had been the innkeeper remained in the building and carried on the business of a shoemaker, and the evidence showed that many persons frequented the place for several weeks after the innkeeper turned shoemaker. It was held that the place ceased to be a public place after the eighteenth of January, and the notice was not sufficient.2

Whatever is required to be done as to the mode of the publication, or otherwise, must be performed substantially in accordance with the statute. Where the statute required the notice to be posted in four public places in the county, one of the copies to be posted in some conspicuous place in the treasurer's office, to be shown by affidavit of the treasurer, and the affidavit failed to show that "one of the copies was posted in some conspicuous place in the treasurer's office," the defect was fatal to the notice. So where the statute required the sheriff, at the term of the County Court next preceding the day of sale, to return a list of the lands to be sold for unpaid taxes, giving the name of the owner, or if he be not known, the last reputed owner, and the amount of tax due on each tract, which list was required to be read aloud in open court, a copy to be recorded by the clerk upon the minutes of the court, and a copy to be set up by the clerk during the term in the court room, a failure to comply with these requirements would render the sale of the lands void. The court was of opinion that the making of the return and having the list recorded were essential to the authority to sell. Whether a failure to read aloud the list in the court room, or to post the list in the court room during the term would avoid the sale was not decided. So where the town clerk was required to give notice at the town meeting that the lists of lands advertised for sale by the comptroller for unpaid taxes are in his office, a failure to give such notice is a fatal defect.5

How long published.—The notice must be published the full period required by statute. In the following cases the publication was

5 Pierce v.

Tidd v. Smith, 3 N. H. 178. 4 Kelly v. Craig, 5 Ired. (Law), 129.

Hall, 41 Barb. 142; Noland v. Busby, 28 Ind. 154; s. P. Abbot v. Lindenbower, 42 Mo. 162.

not sufficient: The statute required a publication for twelve weeks, and it was published eighty-two days;1 taxes were to be paid on the first of October, and as to land delinquent, the notice was to be published for three weeks, the last publication to be two months before the day of sale, and the sale took place on the ninth of December, 1823, for the taxes of 1823;2 the statute required the notice to be published three months; it was first published January fourth, the sale to take place on February first; after publication one month in this form it was changed by consent of the delinquent so as to make the sale take place on April first, but where the statute required a publication three weeks successively, and it was published on Saturday, November the second, but it was not published on Saturday, November the ninth, because after the first publication, the day of issuing the paper, a weekly, was changed to Tuesday, and it was published again on Tuesday, November the twelfth, and Tuesday, November the nineteenth, this was deemed a sufficient compliance with the statute.1

Where the statute requires a delinquent list to be made out October first, and a copy to be immediately published for four weeks successively, the sale to be on the first Monday in January following, the first insertion was on November the twentieth, a mistake in the notice was corrected, and as corrected it was published the four weeks, commencing on November twenty-seventh, the notice was held defective in its publication. Immediately means as soon after the first of October as it could be reasonably effected, and a delay of fifty days is not reasonable. In ascertaining whether the notice has been published for the full period, facts must be stated from which the court can determine the question. Where the time required was eight weeks, an affidavit that the notice was published eight weeks is not sufficient; it should state the day the publication began and the day it ended."

5

Proof of Notice.-In some States the notice is required to be recorded to perpetuate the evidence. In such cases the proof must be by production of the record, and parol evidence is not admissible;7

1 Early v. Doe, 16 How. 610; Bussey . Leavitt. 3 Fairf. (Me.) 378: Nalle v. Fenwick, 4 Rand. 595; Farrar v. Eastman, 1 Fairf. (Me.) 191.

2 Moore v. Brown, 11 How. 414.

3 Pope v. Headen, 5 Ala. 433; Elliott v. Eddins, 24 Ala. 509.

Cass v. Bellows, 11 Foster (N. H.) 501.

Carpenter v. Sawyer, 17 Vt. 121; Taylor v. French, 19 Vt. 49; Langdon v. Poor, 20 Vt. 13; Minor v. McLean, 4 McLean, 138; Kellogg v. McLaughlin, 8 Ohio, 114.

and if the record is defective, it is fatal to the notice, and no presumptions will be made. The record must show affirmatively that the necessary notice has been given. When the affidavit as to the posting of the notice was defective, it was presumed that this was the only proof on file, and being defective the sale under it was void. Where the statute requires the county commissioners to file the newspaper in which the notice was inserted in the prothonotary's office, with the affidavit of the printer as to its publication, no other evidence was allowed, and an affidavit was required of one printer to each paper.* In the trial of a tax title, in a State where there was a judicial condemnation of land for taxes by the Circuit Court, it was held that the record need not show that the person who signed the certificate of publication was the publisher, for it will be presumed that this appeared by proof to the Circuit Court. Would such a presumption be indulged in those States where there is no judicial condemnation, and the authority of the officer to sell is founded on a strict compliance with all precedent requirements of the statute? I think not. If there be no statutory provision on the subject, the notice may be proved by the introduction of the newspaper in which it was published, with evidence of the number of times it was published.*

Under laws already existing, a levee tax was laid on certain lands, and under the statute they had been sold and purchased by the levee commissioners. Doubts having arisen as to the title to these lands, an act was passed to quiet the titles. It authorized the commissioners to file a bill against the lands, giving notice to the former owners in the county or State, by publication. The act was declared unconstitutional, as not being "due process of law." In proceedings in rem the court obtains jurisdiction by seizure or some equivalent mode; at common law it obtains jurisdiction by personal service of process, and as to non-residents the legislature may substitute notice by publication for personal service, but not as to residents.5

§ 113. By whom Land should be Sold.-The sale is by the officer designated by statute, the collector, sheriff, treasurer or other officer in whom such authority is vested in the particular State. Where there is a judicial condemnation of the land for the unpaid taxes, and an order of sale, the precept which is issued by the clerk of the court,,