#### John Doe, ex dem. Samuel B. Hill, et al. v. Luther Leonard.

Error to Adams.

i. Tax — deed as evidence. To render the auditor’s deed of land sold for taxes, under the law in force in 1827, evidence of title, it is incumbent on the party offering it, to show the authority of the auditor to make it, by showing the land liable to sale, and the performance by him of all the preliminary acts required by law. Such a deed confers no title unless made in conformity to all the requirements of the law; and the proof of the compliance with the pre-requisites to a sale devolved upon the party offering the deed in evidence, (a)

This was an action of ejectment instituted by the plaintiffs in error against the defendant in error, in the Adams circuit court. At the September term, 1840, of the court below, the [*141] Hon. Peter Lott presiding, a jury was called, and after the trial had progressed for some, the defendant offered in evidence a deed from the auditor to W. Keyes, assignee of H. H. Snow, dated the 8th of January, 1829, purporting to be made in pursuance of a sale by the auditor, on the 3rd of January, 1827, for the taxes due on the land mentioned therein, for the years 1825 and 1826. The plaintiffs objected to the introduction of this deed, but the objection was overruled, and the deed admitted. It was then agreed by the parties, that the jury should be discharged, and if it should appear to the court that the deed was valid, judgment should be rendered for the defendant; but if the court should be of opinion that the deed was invalid, then judgment should be rendered for the plaintiffs, and that each party should have the right to appeal to this court. The court below rendered judgment for the defendant, and the cause was brought to this court by writ of error.

A. Williams, for the plaintiffs in error:

The auditor had no authority to convey to the assignee, or, if he had, the assignment, being an act in pais, should have been proved. Gale’s Stat. 155, .§2; 4 Peters’ Gond. R. 396; 14 Peters 322; 7 Cowen 88; 7 Wend. 148.

The regularity of the sale ought to have been proved. Jurist ;.and Law Misceilany for August, 1835, 614; Sugden on Powers .1, 210, 241-6, 255, 259, 261, and 267; 3 East. 410; 4 Peters’ *147Conti. R. 395; 14 Peters 322; 2 Dali. 304; 4 Cranch 403; 9 Cranch 64; 5 Wheat. 116 ; 6 Wheat. 119; 8 Wheat. 681; 1 Cooke 360, 365; Dev. and Bat. 386; 2 Blackf. 70, 425, 494; 7 Cowen 88; 7 Wend. 148; 2 Ohio 231-2, 293, 505; 3 Ohio 233 ; 5 Ohio 368, 458 ; 1 Scam. 335 ; 4 Kent’s Com. 330; Revenue Act of 1827, §§4, 28; Slat, of 1823, 203, §§4, 7.

The act of 1830 relates to sales made after its passage, and under its provisions, and is not retrospective. Gale’s Stat. 571, §9; 1 Scam. 335; Bac. Abr., title Statute, 370; 8 Wend. 661; 10 Wend. 363; 12 Wend. 137; 7 Johns. 477; 2 Peters-434.

James H. Ralston, for the defendant in error.

(a)

Cases Citing Text. Under revenue statute' of 1827, Auditor’s deed was not admissible in ■ evidence to prove title without preliminary proof that pre-requisites of statute had been'complied with. Wiley v. Bean, 1 Gilm. 302, 304; Irving v. Brownell, 11 Ill. 402, 411.

Statute of 1829 was departure from common law rale requiring strict proof of all steps in statutory proceedings transferring title, and put burden of proof on .party controverting Auditor’s tax deed, Graves v. Bruen, 11 Ill. 431, 438.

Party, relying on tax deed as title, must prove valid judgment and execution before he can use deed as evidence. Williams v. Underhill, 58 Ill. 137, 138.

Wilson, Chief Justice,

delivered the opinion of the court: Upon the trial of an action of ejectment for the recovery of a tract of land in the court below, the defendant, in order to prove title to the land in controversy, offered in evidence a deed to the land, from the auditor of the state to W. -Keyes, assignee of H. H. Snow, dated the 8th of January, 1829, purporting to be made in pursuance of a sale of the said land by the auditor, on the 3rd of January, 1827, for the taxes due on the same for the years 1825 and 1826.

To the introduction of this evidence the plaintiffs ob- [* 142] jected, but the court overruled the objection, and allowed the deed to be read as evidence of title. This decision is now assigned for error.

The question raised in this case has been settled by this court in the case of Garret v. Wiggins, 1 Scam. 335. In that case a sale and conveyance of land had been made by the auditor, for the payment of taxes under the same law that the sale and conveyance in this case was made, and in deciding upon the effect of the deed, the court there says, that the party relying upon the deed “must show that all the indispensable preliminaries to a valid sale which the law prescribes, have been complied with, or the conveyance will pass no title. This rule is founded on authority and reason, and settles the illegality of the admission of the deed offered in evidence by the defendant. To render the auditor’s deed to land made in pursuance of a sale for taxes, under the law in force in 1827, evidence of title to the land, it is incumbent upon the party offering it, to show the authority of the auditor to make it, by showing the land liable to sale, and the performance by him of all the preliminary acts required by law. The deed of the auditor to Keyes conferred no title, unless made in conformity to all the requirements of the law; and the proof of a compliance with the prerequisites to a sale devolved upon the party offering the deed in evidence; and for the omission to make such proof, the court ought to have rejected the deed.

Other objections are made to the deed’s being received as evi-*148deuce of title, but it is unnecessary to notice any other than the plain and obvious one alluded to.

The judgment of the court below is reversed, and, in accordance, with the stipulations of the case, judgment is here rendered for the plaintiffs.

Judgment reversed.

After the decision of this cause, the plaintiff in error discovered that the demise containéd in the declaration had expired; and he therefore moved to amend the record by striking out the word “ five,” before the word years, in the demise in the declaration, and inserting the word “ ten.” The motion was allowed.

Motion allowed.