O'Grady v. Barnhisel

Cope, J. delivered the opinion of the Court—Field, C. J. and Norton, J. concurring.

This is an action of ejectment, in which the plaintiff recovered upon a tax deed purporting to have been executed on a sale for taxes under the Revenue Act of 1857. The deed was admitted in evidence against the objection of the defendants, and various grounds are now urged in support of the objection thus taken. These grounds involve the construction of certain provisions of the act referred to, and attack the validity of the deed on account of a supposed non-compliance with these provisions. It is contended that the matters, a statement of which is required by the act in order to render the deed effectual, are insufficiently set forth, and that the deed is therefore inoperative. Sec. 18 of the act provides that “ after receiving the taxes and costs for any property sold, the Tax Collector shall, as soon as practicable, issue to the purchaser a certificate in duplicate, stating substantially that the property was assessed,” etc.; specifying particularly the matters to be stated. Sec. 22 provides that |$ie deed shall state the same matters substantially as stated in the certificate; and Sec. 23 provides that a deed conforming to the requirements of the act shall be prima facie evidence of title in the grantee.

The deed in this case states that the property was duly assessed, and that the taxes were levied upon it according to law; and states in the same manner other matters required by the act. The defendants claim that this mode of statement is not sufficient, and that there is no authority in the act for a deed setting forth the matters necessary to be stated 'in the forms of legal conclusions. Their position is that the deed must state the facts, and that the existence of these matters must appear from the facts stated; and that a statement amounting merely to a conclusion of law is not within the meaning of the act. This view is urged with much earnestness and force of argument; biit a careful consideration of the act leads us to a construction different from that adopted by the learned counsel. The act must be construed with reference to the [292]objects intended, to be accomplished by it, and it will hardly be claimed that an interpretation which defeats this object is admissible. Of course, the primary object was to provide revenue for the support of the Government, and the provisions in question constitute a part of the machinery devised for that purpose. The stringency of these provisions was intended to facilitate the collection, and to overcome as far as possible the difficulties which had always been experienced in enforcing payment. It had become proverbial, that a tax title was no title at all; and a sale for taxes was as near a mockery as any proceeding having the appearance of legal sanction could be. The principal cause was the difficulty in proving the various steps essential to the validity of such a sale; and the intention was to change the rule of evidence upon that subject, and throw the burden of proof upon the party asserting the invalidity. The view contended for would entirely defeat this intention; for if the facts are to be stated in the deed, the effect is precisely the same as to require them to be shown aliunde. The only difference is in the mode of proof, and the embarrassment is rather increased than diminished; for if any material fact be omitted, the deed is invalid, and cannot be given in evidence. The purchaser is subjected to the double risk of an err.or in the ^previous proceedings, and a mistake in setting these proceedings forth in the deed, either of which would be fatal. These results are plainly in contravention of the purpose intended, and the language of the act is ho less conclusive. The general provision is, that the matter specified shall be stated ; but in respect to the publication of the notice of sale, it is provided that the manner of publication shall be described. If it were intended that the same particularity should be observed in other respects, that intention would doubtless have been expressed; and the maxim expressio unius est exolusio alterius applies. We regard the deed as conforming substantially to the requirements of the act; and our conclusion is, that no error was • committed in allowing it to be given in evidence. It is true, some of the matters set forth are stated by way of recital; but as they distinctly appear, there is nothing in the manner of stating them, for which the deed could properly have been rejected. The point in regard to publication is more of a criticism" than an objection, for the deed