#### W. L. JONES v. JAMES M. SCHULL et al.

(Filed 30 November, 1910.)

1. Tax Deeds — Unlisted Lands — Record Evidence — Notice — Ex-sheriff — interpretation of Statutes.

In an action to try the title to certain lands in the possession of the defendant claiming as purchaser under a tax deed made under ch. 119, Acts of 1895, which the plaintiff, showing papeif title in himself, seeks to impeach. Held, (1) evidence on behalf of defendant is competent to show that the lands were not listed for the years 1893-4, and that the chairman of the board of county commissioners had for those years caused the property to be listed in the name of the supposed owners, charging against the property double the ordinary charges (sec. 29, ch. 296, Acts 1893) ; (2) the Acts of 1897, prescribing that notice be given the owners, is prospective by its terms, and as it was effective only one month before the time for redemption had expired, the three months’ notice could not have been given, and its provision is inapplicable to this case; (3) the tax deed was made in the statutory time, and the fact that it was made by an ex-sheriff does not affect its recitals, Revisal, see. 950; (4) the right of the owner to redeem his land sold for taxes exists only in conformity with the statutory provisions.

*5182. Tax Deeds — Infants—Redemption—Interpretation of Statutes.

Section 60, ch. 119, Acts of 1895, providing that infants, etc., may redeem their lands sold under a tax sale within “one year after the expiration of the disability on like terms as if the redemption had been made within one year from the date of the sale,” etc., is not available to such minors who make no offer to redeem within the time given them by the statute after reaching their majority or for several years thereafter.

3. Tax Deeds — Recitals—Evidence—Presumptions.

On the conelusiveness of a tax deed made in 1895 as evidence of certain facts, and presumptive evidence of others, Barnes v. Armstrong, 146 N. C., 1; King v. Caspar, 128 N. C., 347; Matthews v. Bry, 141 N. C., 582, are cited and approved.

Appeal from Weií, J., at tbe Spring Term, 1910, of Wa-tauga.

Tbis action was brought to try tbe title to certain lands described in tbe complaint and in tbe possession of tbe defendants, Scbull and Qragg. During tbe trial a voluntary nonsuit was taken as to all tbe defendants except tbe two above mentioned. Tbe plaintiffs, after making tbe usual allegations of title and right of possession in them as tbe heirs at law of W. C. Jones, whom it is alleged died in 1894 siesed and possessed of tbe land, further allege that tbe defendants claim title under a tax deed executed to them by tbe sheriff of Watauga County and allege that tbe said deed is invalid (1) because tbe land was not listed for taxes and was not assessed for tbe year for which it was sold, (2) that no notice of sale was seryed upon plaintiffs or upon any one representing them, (3) that no advertisement of said land was made, (4) that no notice to redeem was given or served upon tbe plaintiffs or any one on their behalf, (5) that several years elapsed between tbe date of tbe sale and tbe date of the deed, (6) that the sheriff making tbe sale was not the sheriff at tbe time tbe deed was made, (7) that tbe plaintiffs, heirs at law of W. C. Jones, were at tbe time of tbe sale and tbe date of tbe sheriff’s deed femes covert or minors. Tbe defendants denied tbe allegations of title in the plaintiffs and averred tbe regularity and validity of tbe sheriff’s deed to tbe defendant Scbull — • tbe other defendant claiming under him. Tbe plaintiffs offered a grant from the State, dated 10 August, 1883, to W. C. Jones *519and Eobert Munday covering tbe land in controversy; a deed from Munday to Jones for bis share in tbe land; tbe death in 1891 of Jones and that tbe feme plaintiffs were bis heirs at law. Tbe defendants offered tbe deed from D. F. Baird, ex-sheriff of Watauga County, to J. M. Schull, dated 10 March, 1899; this deed recited tbe assessment of taxes on tbe land, describing it;' tbe non-payment of tbe taxes assessed; tbe levy on tbe land for unpaid taxes; tbe return of tbe list of levies to tbe clerk of tbe Superior Court; tbe advertisement and notice of sale as required by law; tbe sale at tbe courthouse door on 6 April, 1896, and tbe purchase by Schull, the payment of tbe amount by him and tbe failure to redeem. Tbe minutes of tbe Board of Commissioners of Watauga County at their regular meeting on 7 October, 1893, were offered, showing that tbe property of a number of persons, including tbe land in controversy, was listed and double taxes assessed against it for failure of tbe owners to list, and order passed directing tbe sheriff to collect tbe double taxes; also a similar order made 5 October, 1894, which bis Honor excluded, and defendant excepted. Tbe defendants offered D. F. Baird, ex-sheriff, who testified, among other things, that tbe order of tbe commissioners was delivered to him by tbe register of deeds; that be advertised and sold tbe land as recited in bis deed to Schull, having pursued tbe legal requirements, that certificate of sale was dated 6 April, 1896, and was offered in evidence; that he notified tbe husband of one of tbe plaintiffs, in whose name for all of them tbe land was assessed, of tbe nonpayment of taxes, that tbe land bad been sold and that unless it was redeemed, be would make tbe deed to Schull. Tbe defendant Schull testified that be wrote one of tbe heirs at law that tbe land bad been sold for taxes and be bad bought it. At tbe con-elusion of tbe evidence, bis Honor stated that be would bold as a matter of law that tbe deed from D. F. Baird, ex-sheriff, was invalid and did not divest tbe title of plaintiffs, and accordingly instructed the jury that if they believed tbe evidence, to answer tbe issue of title in favor of tbe plaintiffs. The defendants excepted, and from the judgment rendered, appealed .to this Court.

No counsel for plaintiffs.

L. D. Love and F. A. Linney for defendants.

*520Manning, J.

We tbink the ruling of bis Honor was erroneous. It was competent to sbow tbat the land in controversy bad not been listed by the owners for the-tax years 1893 and 1894, and tbat the chairman of the board of commissioners bad inserted in the list such property as bad not been listed by the own'ers, with the names of the persons supposed to be liable, and to charge against such property double the tax with which it would otherwise be chargeable. Tbe orders of the board of commissioners entered on the first Mondays of October, 1893 and 1894, were, therefore, competent, and it became the duty of the sheriff to collect the taxes assessed against the land in controversy— the legal tax embracing the double charge for failure to list. Sec. 29, ch. 296, Public Laws 1893. It was error to exclude this evidence. It appears tbat two of the plaintiffs were minors at the death of their father, W. C.'Jones, in 1894, and that they were still minors at the date of the sale and deed by the sheriff. Sec. 60, ch. 119, Acts 1895, the act in force at the time the sale for taxes was made, provides: “Infants, idiots and insane persons may redeem any land belonging to them from such sale within one year (after the expiration of such disability on like terms as if the redemption bad been made within one year) from the date of said sale, etc.” But it appears from the evidence tbat these two minors did not avail themselves of this provision in their favor, for no offer to redeem was made within the year after they attained their majority; nor for several years thereafter, and only in the complaint filed in this action. In McMillan v. Hogan, 129 N. C., 314, this Court said: “In the United States Supreme Court (Keeley v. Sanders, 99 U. S., 441, 445), it is held that the right of redemption from tax sales, although it is to be regarded favorably, does not exist, except as permitted by statute. Tbe same is held in Levi v. Newman, 130 N. Y., 11; Smith v. Macon, 20 Ark., 17; McGee v. Bailey, 86 Iowa, 513; Metz v. Hipps, 96 Pa. St., 15.” Cooley on Taxation (1 Ed.), 364, cited by the Court, is to the same effect, the author saying the rigbf to redeem “is to be asserted only in the cases and under the circumstances which are there prescribed.” All the plaintiffs, therefore, are on the same footing and their rights are to be determined alike. Tbe tax sale and deed, the validity *521of wbieb is impeached in this action, were made under provisions of the Act of 1895, ch. 119. In King v. Cooper, 128 N. C., 347, this Court said: “In the original act of 1887, which is very nearly a copy from the reformed system prescribed for tax sales in Nebraska, there was a salutary provision (sec. 69) which required that the purchaser of lands at tax sales, or his assigns, should three months before the expiration of the time of redemption, serve a written or printed notice of his purchase on the person in actual possession of the land, and also on the person in whose name the land was assessed. This provision was omitted in the acts regulating the sale of land for taxes in 1889, 1891, 1893 and 1895. Attention having been called to the omission by this Court in Sanders v. Earp, 118 N. C., 275, this clause was reinserted by chapter 169 of the Act of 1897, in which it constitutes sections 64 and 65.” And it is further held in that decision that where such written or printed notice is required to be proven, it must be proven by the purchaser as a condition precedent, and there is no presumption arising from any provision of the law that such notice was given as required. This case has been expressly approved in Matthews v. Fry, 141 N. C., 582; Eames v. Armstrong, 146 N. C., 1; Warren v. Williford, 148 N. C., 474. Conceding there was no evidence that such notice was given as required by see. 64, ch. 169, Acts of 1897, no such notice was required by the Act of 1895, and the section of the Acts of 1897 was, by its terms, prospective only. But as that act went into effect only one month before the time for redemption had expired, even if the act were not exclusively prospective in its operation, the purchaser — the defendant Schull— could not have complied with its provisions; he could not have given the prescribed three months notice before the time of redemption had expired. The statute must be construed to be prospective in its operation unless the contrary intention be clearly expressed therein. Woodly v. Bond, 66 N. C., 396; S. v. Littlefield, 93 N. C., 614; Green v. Asheville, 114 N. C., 678; Lowe v. Harris, 112 N. C., 472; Morrison v. McDonald, 113 N. C., 327. The execution of the deed by Baird as ex-sheriff does not affect its validity or the effect of its recitals, the deed having been made in the statutory time. Eevisal, sec. 950; *522 Curlee v. Smith, 91 N. C., 172; Mfg. Co. v. Rosey, 144 N. C., 370. The other questions presented have been so fully considered and determined by this Court in several decisions, no further discussion of them is required; the citation of the cases is sufficient. Eames v. Armstrong, 146 N. C., 1; Matthews v. Fry, supra; King v. Cooper, supra, and cases cited. It will appear from those cases and from the act in force that the tax deed was conclusive evidence of certain facts and presumptive evidence of others. His Honor should have so instructed the jury. In the instruction given, there was error, for which a new trial must be had.

New trial.