#### Patrick vs. Davis.

Although, a collector execute, deliver, and acknowledge, to a purchaser of land at tax sale, a deed containing recitals of every pre-requisite prescribed by the statute, yet, if the land was misdescribed in the advertisement of the tax sale, the owner is not divested of 'his title and estate in the land.

Appeal from St. Francis Gi/rewit Gov/rt.

Hon. Charles W. Adams, Circuit Judge.

Pike & CuMMiNS, for the appellant.

"We submit i£hat the purchaser, at a tax sale, 'Cannot -be disturbed by -reason of any irregularity liere alleged': that the -sheriff’s deed is conclusive. Bees. 112, 113, eh. 139, Rev. Btat./ Pillow vs. Roberts, 7 Ark. 822/ ATewtotb vs. State Bcmk, 14 Ark.

Mr. Justice Scott

delivered the opinion of the Court.

3n opening and examining this record, we were forcibly and very favorably impressed with tbe lawyer-like manner in which this case was gotten up, and is presented for our 'decision by the united professional skill of the learned court and counsel.

It was an action of ejectment by Patrick, who claimed the land in controversy, under sheriff’s deed, made on a sale for taxes against Davis, the patentee andowner. The cause was tried and determined upon the general issue, (before the Hon. Charles W. Adams, Judge,) in the St. Francis Circuit Court, the parties having waived a trial by jury, and requested the court to find the facts as on special verdict, which was done.

Prom this, it appears, that the lands were patented to the defendant, Davis, who has held possession of them eversince. That, up to the 24th of December, 1850, he was a non-resident of the *364State of Arkansas. That, in tbe year 1849, tbe lands were regularly listed for taxation in bis name, and tbe State and county taxes duly assessed upon them in tbe county of St. Francis, where they are situated.. That tbe taxes, so assessed, not baying been-paid,, tbe collector attempted to advertise these lands for sale in-pursuance of tbe statute, but described them as being situated in range-numbeivtbree east, instead of three west, their true description.: In other respects,, tbe advertisement conformed to tbe provisions of tbe statute. That tbe defendant bad a resident agent in St. Francis county, authorized to pay tbe taxes in question,, who, in due. season, before tbe lands were advertised, applied to tbe collector, to pay them, but was informed by that officer that tbe lands bad been omitted to-be listed and assessed for that year,, and would be- double taxed the ensuing year. That afterwards, when this advertisement appeared, this agent again called on the-collector, and pointing out tbe mistake, was informed by that officer, that for tbe reason of this error tbe lands would not be-offered for sale as advertised; and, in consequence, tbe agent did. not attend tbe sale. That, nevertheless, at tbe time and place-advertised, tbe collector did offer tbe lands described in tbe patents, and so misdescribed in bis advertisement, and tbe plaintiff became tbe purchaser at tbe price set out in tbe deeds. That, in pursuance of that sale, tbe plaintiff received tbe usual certificate of purchase for the lands correctly described, kept them for a period beyond one year, and then, upon presenting, them to tbe collector, received in exchange deeds for tbe lands in controversy; which are set out m hm verla, and were duly acknowledged and recorded. These deeds do not in any way exhibit tbe misdescription of tbe lands in tbe advertisement; but, on the contrary, recite, among other things, that the collector “ did proceed to advertise, and give at least thirty days’ previous notice, according to law, that he-would sell, &c., the said tracts of land,” &c., the lands having been correctly described in a previous recital contained in tbe deeds. It also was found that tbe defendant owned no other lands, in St. Francis county, than those described, in bis *365patents and in the declaration, and that be wasintbe possession off them at the time of the-service of the writ. TJpon this state of facts,, tbe court being of opinion that the law was fbr the defendant — to-which opinion the plaintiff excepted, and tookhis bill of exceptions-!

. — the finding, as-npon special verdict, was in accordance with this, opinion of the court. And final judgment having been rendered; upon this finding for the defendant, the plaintiff, appealed to this-court.

The appellant’s counsel submit that,.under our revenue laws, it was the intention of the Legislature to place the validity of tax. sales upon the same footing with execution sales under the authority of the Circuit Courtand that inasmuch as, in the latter-class of cases, the want of actual advertisement,.when returned; by the sheriff as having been made, (Newton vs. The State Bank, 14 Ark. R. 9,) cannot be urged against an innocent purchaser,, the only redress in; either case- should be through a, proceeding; against the officer for any damage which may have-resulted frank his negligence.

It has Ibng been the prevailing doctrine, as was remarked in; the case of Merrick & Fenno vs. Hutt, decided at the present:, term, that to divest the owner of his titlfe and estate in lands, by a sale for taxes, it is necessary that it should be shown that every substantial step, prescribed by the statute, had preceded the-sale. This was the principle of law recognized and applied by this court, in the case of Hogins vs. Brashears, 13 Ark. R. 242, and which had been almost universally recognized both inthe> Federal and in the State Courts. So much so, that it- cannot but be presumed, that it was within the knowledge of. the Legislature,., at the time of the enactment of our revenue-laws.. Indeed, some-of the provisions of these laws indicate- that they were enacted; in direct reference to a recognition of'this doctrine;. Thus,in the warrant to be attached to the tax books, the form; of which is; prescribed, {Digest, eh. 139,. see. 40,) if taxes are not paid within ten days after being demanded, the collector is affirmatively “commanded to levy and make the same, or the part remaining unpaid', *366with, costs, in the mannei’ and by the proceedings prescribed by law,” &c., and the same mandate is negatively repeated in the provisions of the 48th section, that this levy and sale shall be made in the same manner as under judgments and executions at law, “when not inconsistent with the provisions of this act.” And then the further provision is made in the 113í7¡; section, that no exceptions shall be taken to any deed, which, by other regulations, is to contain a recital of these proceedings, “ but such as shall'apply to the real merits of the case, and are consistent with a fair interpretation of the intention of the General Assembly.” Indicating, when taken together, not only a recognition of the doctrine in question, but enacting a modification of it, on a point where the drift of the decisions of the courts had practically made it objectionable, by the double error of a too ready ear to trivial matters of non-conformity to the statute, and the failure to discriminate between those matters, which are really conditions precedent to the validity of the sale, and those which are directory merely, and designed for the information of the officers and to promote method, saystem and uniformity, in the mode of proceeding. And in the same category may be included that cajú-tal provision of the statute, according with the legislation of several of the States, which, when the deed is regular upon its face, reverses the onus proba/ncbi, and subjects the tax title, when thus sustained, to be overthrown, only by proof of a non-conformity in the proceedings to some one of the substantial prerequisites to the sale.

True,,the Legislature had equal authority to abolish the doctrine in question as to modify it; but it would only be that character of modification which would be inconsistent with the doctrine itself, that would work its abolition by implication, in the absence of express legislation.

If this doctrine rested upon the simple ground, that the power in question was a naked power — not coupled with ,an interest,' then there would be more room, both for question as to its soundness, and for plausibility in the position assumed for the appel*367lant; because, in this respect, it does not perhaps differ at all from the sheriff’s power, when selling land under execution from the Circuit Court; but it rests upon a much wider and more solid legal basis. Not only is it, in its- nature, a special and limited ppwer, but its operation is penal, in a summary manner, out of ■the cause of the common law, and against common right, and there are, therefore, at least three concurring, though distinct, legal reasons, why it should' be strictly pursued. Such a power is as much a special one, as that vested in militia officers and courts- marshal, to enforce the performance of military duty; and the obligations of the citizen to pay taxes and render military services, grow out of the same political contract. It is created by the statute, and the mode of its exercise specifically pointed out in a course different from that of the common law.. It provides the resident tax payer no day in court upon the important question, whether or not he has neglected or refused to pay within ten days after demand; and it is upon this only that he1 can be put in default, and that the right to levy upon and seU. his land, arises. It is, therefore, strongly against common right. If his land is sold, it is not because any comt has adjudged him in. default, but because a ministerial officer, in the double capacity of judge and witness, has passed upon his case ex parte.

If, as against a purchaser, ’ at a collector’s sale, all inquiry is cut off as to the advertisement, and the injured party turned over to the officer for redress, upon the principle contended for, the like would be the result as to the fact of refusal to- pay within the ten days after demand, and as to all the other acts- in pais. And if this rule is to prevail, it would seem that the collector’s bond, unless greatly enlarged in amount beyond double the sum; of the State and county taxes, would be a very inadequate security for the land owners of a county, against all of whose lands he would annually have process of execution;. while the sheriff would not perhaps have like process against an equal quantity of land within a half century.

Such a power, as that defined for the collector of taxes by the *368‘current of authority, lives only in.the authoritative acts prescribed to be done by him — ^the power to do the succeeding act ¡arising from -his having authoritatively done the .preceding one. When, therefore, - one of -these acts is omitted, the chain of his ,power is broken, and he having no .general authority to -invoke, •to sustain any subsequent act, it is necessarily without power.

Not so, however, with the power'of a sheriff, when selling land ’•under a valid execution, issued from a Circuit Court xrpon a subsisting unsatisfied judgment of that'COurt;because.his power lives mot only in his acts .prescribed to be done Iby the statute, but in ¡.the judgment and execution concurrent with the statutory regulations for its exercise. These regulations prescribe the form of the process of execution, and the mode in which execution shall be done, and, in doing so, recognize and authenticate, at the same ' iiime, that they, to -some degree, extend the ’.inherent constitutional power of the-Circuit-Court to execute its own judgments. When, therefore, -in doing -execution, ;a sheriff should deviate ifrom the modequ’escribed by the statute, althoixgh to this extent the proceedings would be erroneous, there could not be any absolute defect of .powei’, because his act 'would still be within the ¡scope of the general constitutional powers of the court under whose authority he acts. -Not unlike some of the acts of an executor, which, although not in conformity to the provisions of the statute regulating his duties, would nevertheless be upheld, because- of his authority being derived from the testator and living fin. his will, although the statute prescribes the mode of fits probate, the form of the grant of letters testamentary, and makes ¡regulations for his representative action. These provisions of the ■statute being but in recognition and authentication of the power ’-conferred by the will, the exercise of which they also regulate.

But, however well or fill-founded in legal reason this doctrine anay be, it was too well established by the almost uniform .-current of decisions to have escaped the notice of the Legislature.; and if it had been the intention to overturn -it by our revenue laws, instead of simply modifying it on those points, where its *369practical operation bad pressed most severely against tbe validity of sales, it is fair to presume there would have been a far more distinct intimation of tbe legislative will to tbis effect, than can be gathered from any fair construction of tbe various provisions made. Indeed, some of tbese strongly indicate tbe contrary, as those made by tbe 91st and 92d sections of tbe law, which, after providing that tbe deeds'for lands of residents sold for taxes shall be executed and acknowledged in tbe same manner as deeds are made for lands sold under execution, enacts that “such deed shall vest in tbe grantee, bis heirs and assigns, a good and valid title, both in law and equity, and shall be evidence of tbe legality and regularity of tbe sale of such land, until tbe contrary be made to appear.” Sec. 92. So, also, tbe 113th section provides that, “No exception shall be taken to any deed made by tbe collector for lands sold for taxes, but such as shall apply to tbe real merits of tbe case, and are consistent with a fair and liberal interpretation of tbe intention of tbe General Assembly.” While .the provisions, as to sheriff’s deeds for land sold under execution, are simply that when acknowledged, or proved, and recorded, they shall be evidence, without further .proof, {¡Digest, ch. 67, sec. 64,) and that tbe recitals contained in them, shall be evidence of tbe facts recited, (id., see. 60,) without further verbiage. Although tbis discrepancy may have no very strong legal bearing, it may, nevertheless, be regarded as one of tbe signs, by which tbe true intention of the Legislature, as to the doctrine in question, may be arrived at. Tbe principal evil of tbe doctrine, as it originally stood, was the difficulty, amounting almost to impracticability after tb e lapse of a few years, of the purchaser establishing, by proof,'tbe various acts m pads of tbe collector, upon which the validity of bis deed depended. That has been remedied in our revenue laws, by tbe provisions of tbe 92d and 112th sections, making tbe deeds, when regular upon their face, evidence of tbe regularity of tbe proceedings, and thus casting tbe onus prdbcmdd upon tbe party who questions tbe validity of tbe sale. Another evil was, that the invalidity of tbe sale was often declared, upon grounds of *370trivial nonconformity of tbe proceedings to tbe provisions of tbe law, wbicb in no way touched tbe real merits of tbe case. For tbis, tbe 113th section provides a remedy, in tbe provision that sucb objections shall not be allowed.

Tbe objection in tbe case before uswhich is substantially, as is in effect conceded by tbe counsel, a failure to- advertise the lands for sale — -makes it necessary that we should ascertain whether tbis nonconformity with tbe provisions of tjre statute, requiring that the lands should be advertised, is cured by tbe last cited section of tbe revenue law.

It may be stated, as a reasonable proposition,.that all those provisions of tbe statute, wbicb are mere regulations of business, designed for tbe information of tbe assessors and collectors, tbe county court,,and the-auditor, in tbe routine of their respective duties, touching tbe revenue, and intended to promote method, system and uniformity,, in tbe mode of proceeding, tbe noncompliance with wbicb can, in no respect, injuriously affect tbe inr dividual rights or interest of tbe tax-paying citizen, cannot be said to touch tbe merits of any case be may make against tbe validity of a sale of bis lands for taxes. Whereas, all those provisions,, which, are intended, or wbicb maybe of a character to operate practically, for bis protection, security or benefit, tbe noncompliance with wbicb would consequently be likely so to affect sucb rights or. interest, would,, without doubt, be of tbe merits of sucb a case. Tbe former, class of regulations may be, therefore, well regarded as purely directory, tbe noncompliance with wbicb, although subjecting tbe recusant officer to legal animadversion, would not invalidate tbe sale; while tbe latter class may, with equal reason,, be regarded as conditions precedent to tbe legality and validity of tbe sale. It was to-enforce tbis plain, and, to some extent recognized, distinction, (Torry vs. Millbury, 21 Pick. R. 67; Brainard et al. vs. Con. River Rail Road Co., 7 Cush. R. 505,) and to suppress tbe mischief wbicb bad resulted from its having been too often, overlooked, doubtless, that our Legislature *371••enacted the 113iA section, and which disallows objections for non ■conformity of the former class.

From this exposition>of the law, it is plain that the objection in'question is fatal. The advertisement, required by the legislature, had too capital objects in view. 1st, To apprise the 'owner of the property;-and 2d, To .give -notice-to persons desirous of purchasing. Both objects are of importance. It is necessary for the interest of the owner, that he should be informed of a proceeding, which, unless arrested by the payment of the tax, would divest him of his property. And it was of equal, if not greater importance, that the property should be so accurately and definitely described that no purchaser could be at a loss to ascertain .its situation and estimate its value. In the case of Roukendorff vs. Taylor’s Lessee, 4 Peters R. 373, it was held that although all this information should be given to the purchaser at the sale, “yet the sale would be void unless the same information had been communicated to the .public in the notice. Its defects, if any exist in the description of the property to be sold, cannot be cured by any communication made to bidders, on the day of the sale, by the auctioneer.” In all the cases we have examined, where the question has arisen, it has been uniformely held, that •a misdescription of the land in the advertisement, is fatal. And, in this State, there is an additional reason, that it should be so held, in the fact, that under our laws, lands may be as well assessed, taxed, and sold in the name of a stranger, as in that of the true owner. Revenue Law, sec. 115.

Besides this fatal objection, facts were found in this case strongly 'tending to show fraud in the officer- making this sale.

The judgment will be affirmed.