M'carrol's Lessee v. Weeks ( 1814 )

[S. C., 2 Tenn., 215.] In Error. — The facts of this case and the errors assigned are stated fully in the opinion of the Court.

Counsel for the Defendant in Error. — This action, of ejectment came on to be tried in the Circuit Court in the county of Montgomery in August term last. Upon that trial, the plaintiff offered in evidence three deeds purporting that the land in question was conveyed to the plaintiff by the sheriff, who had sold the same for taxes by virtue of an execution which issued from the County Court of Montgomery commanding him to sell the lands in question. He produced also a record showing the judgment of the County Court ordering said lands, with others reported by the sheriff, to be sold. The Circuit Court refused to receive said deeds in evidence. A bill of exceptions was filed to the opinion of the Circuit Court in this respect. Errors have been assigned, and upon that assignment the question before this court now is, whether the said deeds ought to have been received. And we now beg leave to submit to your honors that the County Court acted by virtue of a special power delegated to them by the Acts of Assembly of 1797, c. 2; 1798, c. 9; 1799, cc. 4, 16; 1801, c. 8; 1803 c. 2, secs. 12, 13, and, like all special jurisdictions, should state in their proceedings all those circumstances upon which their jurisdiction is founded. It should appear, for instance, that the County Court held next after the first day of January appointed a justice of the peace to take the list of taxable property within the district, and that he advertised the same, at six of the most public places in his district, fifteen days at least previous to the time appointed to take such lists. 1797, c. 2, sec. 3. That the sheriff, after receiving the list of taxable property from the clerk, had appointed the day and place, in the captain's district, when and where he would attend for the purpose of receiving taxes; and that he had advertised the same fifteen days at least at six of the most public places in the district, and that after the lapse of twenty days he had endeavored to distrain, and could find no personal property upon which he could distrain, for the taxes. And it should appear that he had made a report to the Court of this fact. None of these requisites appear upon this record. The sheriff reported certain persons who had not given in their lands for taxation, and the Court gave judgment for a double tax, and ordered the lands to be sold. The words here used were not the proper words for a judgment. "It is ordered, adjudged, and decreed that said lauds be sold," c. It does not appear whether such publication, in the Gazette, which was to precede the judgment by the Act of 1803, c. 2, sec. 14, was ever made or not. By the section last mentioned, execution is to issue as in other cases; that is, as we understand it, against the goods and chattels, lands and tenements, of the defendant. But that execution which did issue was against the lands only which were reported; and thereby the sheriff was obliged to sell lands, although there might be personal property sufficient.

The Counsel, e contra. — If the Court had no jurisdiction, then the judgment was void, and the objection now made may be urged with propriety. But if the Court had jurisdiction, and only erred in the exercise of it, then the judgment was only erroneous, and a sale made by execution under it was equally valid as by one under the most correct judgment. Bull. N. P. 66, 83; 2 Ba. Ab. Error, M. S. 3; 8 Rep., 19, 143. The authority committed to the County Court, by the acts of assembly which the counsel on the other side have referred to, is hot like an authority committed to commissioners. The Court is to act as it does in other matters added to their jurisdiction from time to time by other acts of assembly. They need not set forth the circumstances in which they act to show their jurisdiction as in the special cases alluded to by the counsel on the other side. 1 Term. Rep. 426; Salk. 273; 10 Rep. 76; Cro. C. 395; 1 Vent. 220; 2 Levinz, 131; Cro. C. 355; 5 Rep. 100; 11 Rep. 62, 64; 1 Cro. 309; 1 Jones, 171; 2 Wils, 384; 2. Str. 509, 994; Hard. 478, 480; 1 Vent. 273; Carth. 346; 21 R. Rep. 1142; Salk. 703; 1 Wils. 153; 2 Wils. 205, 384; 4 Com. Dig. 491; 5 Rep. 99.

Their jurisdiction upon this subject is known by the same means as their jurisdiction is in case of attachments; prison-bound bonds; motions against sheriffs and constables, who have received moneys on executions; sureties who have paid the debts of their principals, and the like. Their jurisdiction is known by the general law, which has created it and added to it at different times. And contemporaneous exposition proves the position we contend for. For it is known to all of us that no county court in this State have ever stated on the record where they have given judgment for the sale of lands for taxes, all those circumstances which are now required by the opposite counsel to appear in such record. If such circumstances must by law be stated, then not one good judgment has ever been rendered, nor one valid sale has ever been made in this State. It is possible that the whole people of Tennessee could be so mistaken with respect to the meaning of the laws passed by their legislature? We must either suppose this, or not accede to the argument of the counsel on the other side. We do not doubt, indeed, that all the circumstances mentioned by the counsel on the other side ought to precede the judgment of the County Court. But on the other hand we are to presume, in favor of the judgment, that the Court were satisfied, before giving judgment, that all these requisites had been complied with on the part of the government. Semper presumitur pro sententia is an useful maxim of the common law (1 Burrow, 629; Bull. N. P. 173; 1 Wash. 159; 1 Hayw. 414; 1 Stra. 631; 2 L. R. 1405; Lutw. 1549; 3 Rep. 58; 1 Mod. 117; 1 Vent. 257; 2 Alaska 44; Str. 526; Cowp. 704; 2 Burr. 1069; 3 Keble, 310, 311; 2 Str. 1129; Cro. C. 151, 171, 186, 282; Plow. 441), and may be resorted to on this occasion with peculiar propriety. This was an action of ejectment in the Circuit Court of Montgomery, on the trial of which it appeared that John Garrel had a grant for 440 acres of land situated in that county, which was dated on the 15th of September, 1787.

Heydon Wells, a justice of the peace for that county, reported to its court at July sessions, 1801, a list of taxable property in the county of Montgomery, not listed for the year 1799, nor the taxes paid thereon. The names of a number of persons with their lands are specified, among which is a tract of John Garrel, thus described: "John Garrel, 440 acres near Donalson's Creek." At the same court, it was ordered by the Court that the clerk should make out a report of those lands agreeably to the fourteenth section of the Act of 1797, c. 1. At January term, 1802, of the County Court, it was adjudged and ordered that the tracts of land entered in the names of the following persons, specifying their names, among which was "John Garrell, 440 acres, $4," should be subject to the taxes thereon with the costs. Upon this judgment, an execution issued against the lands of John Garrell, returnable to April sessions of that court. The sheriff indorsed that he had levied on ninety-three acres, but not sold, because he had not obtained the new law which required it to be advertised in the Gazette. From April sessions, an execution issued against the lands of John Garrell for the amount of the tax and costs, returnable to July sessions, upon which was indorsed the sheriff's return that he had sold it for twenty-one mills an acre, making thereby the amount of the tax and costs. At the County Court in April, 1807, the sheriff of the county returned a list of lands that had not been given in for taxes for the year 1806, among which was one in the name of John Garrell for 347 acres, upon which it was ordered by the Court that the clerk make a certificate of the same, together with the amount of taxes and charges due sever ally thereon, and cause the same to be published agreeably to the act of the General Assembly, giving notice that the tracts of land, or so much of them respectively, will be sold as the law directs.

At October term, 1807, it was ordered, adjudged, and directed by the Court that these lands be subject to the payment of the public taxes and costs thereon, and of the county tax for the year 1806, agreeably to law, and that execution issue accordingly. Upon this judgment execution issued against the lands of John Garrell, returnable to January sessions, 1808, on which the sheriff made return in the usual form; viz., Came to hand same day levied, and sold the 8th day of January, 1808, to John M'Carrol, for $7.26, he being the highest bidder, for which he is entitled to my deed for three hundred and forty-five acres of said land, if not redeemed according to law. Taxes and costs, $7.26.

(Signed) John Cocke, Sheriff.

At April term of the court, the sheriff and collector reported 320 acres of land, in the name of John Garrell, due for the taxes of the year 1805; upon which the usual proceedings took place, and execution issued against the lands of John Garrell, returnable to July, 1807. The sheriff returned on that execution that he had levied on Garrell's land, and on the 6th of October, 1807, sold the same to John M'Carrol for $7.43, for which M'Carrol was entitled to his deed for 347 acres of land if not redeemed according to law.

(Signed) John Cocke. Sheriff, M. C.

Tax and costs $7.43. On The 30th of July, 1811. Cocke, the sheriff, made two separate deeds to M'Carrol, — one for ninety-three acres, sold for the taxes of the year 1799; the other for 347 acres, sold for the taxes of the year 1805.

On the trial of the ejectment, after giving the judgment of the County Court for taxes in evidence, the lessor of the plaintiff offered these two deeds in evidence, but they were excluded from going to the jury by the opinion of the Circuit Court. To this opinion exception was taken, and the question now is with this court whether that opinion is correct.

In the course of the discussion, the Acts of 1797, c. 2. and 1803. c. 2, have been referred to. These acts impose certain taxes on all lands, and make it the duty of owners and agents to render lists of taxable property, including lands, in the manner and at the time expressed in them. In case they fail to do so, they are subject to pay double 8 lax, and liable to a fine. It is also made the duty of the returning justice of the peace to report such lands as may not have been given in or listed by owners or agents; and the bettor to secure the revenue, in case any lands should escape the notice of the justice, it is made the duty of the sheriff to report such lands on which no personal property can be found to levy, and which have not been given in nor reported by the justice. Other preliminary steps are required, such as that the returning justice shall advertise the time and place for his receiving lists, c. The grounds taken by the defendant in the Circuit Court were, that the proceedings of the County Court were those of a limited and summary jurisdiction, and consequently that any thing that the acts of assembly required to be done should appear on the record, otherwise the judgments and all subsequent proceedings were absolutely void, for which Cro. Eliz. 270, 278, Cro. J. 246, and Jacob's Law Dictionary, title Void and Voidable, were relied on; and consequently the court below acted correctly in excluding the sheriff's deed.

On the part of the plaintiff in error, this argument was met by the inferences deducible as was contended from Bull. N. P. 66, 83, 173; 1 Hayw. 24; 2 Bac. Ab. 500; Tenn. 348; 467; 2 Hayw. 80; 2 Bac. Ab. 450, The Court understands the general principle to be that the record should show all facts required by law to give jurisdiction to the County Court.

It is not necessary that, the record should show the evidence which enabled the court to act.

Being intrusted by law to judge of that, this court is bound to presume that they had the necessary evidence before them, before passing, judgment. The superior tribunal should be strict and careful to see that inferior tribunals possess jurisdiction of the subject-matter; but as to the manner of exercising that jurisdiction, when these judgments are brought collaterally into view, the law presumes them to be correct, and that all previous requisites and facts, required by law to be shown to enable them to act, appeared, unless the contrary appear from the record, or unless those preliminary steps were not in pais or required to be recorded. As a further reason that the record should show all that the law required to be done previous to judgment, it is insisted that these proceedings under the tax laws are summary, ex parte, and in derogation of the principles of the common law; in support of this position it is urged that the Constitution provides that no man shall be deprived of liberty or property but by the judgment of his peers or the law of the land. It is certainly true that they have the character of summary proceedings, and it is equally true that they must of necessity be so; for if the government were necessitated to take the cautious and tedious steps of the common law, in giving personal notice, making up regular pleadings, and having a trial by jury, it would cease to exist. Want of money to carry on its necessary operations, loss of credit, and a total extinction of national faith, — the basis of all regular governments, — must be the inevitable consequence. The nicety insisted on by the defendant's counsel, in relation to the proceedings of the County Court, would, in a considerable degree, produce the same effect. Many things must appear to the county courts agreeably to law before they render judgment against lands. It must be shown that the justice appointed to take tax list, has done his duty in advertising for owners and agents to meet and give lists, that proper periods have elapsed, that there is no personal property from which the taxes can be made, c. Few county courts are acquainted with the forms of business, and none that thought it necessary that their record, should exhibit this particularity.

Nor is it probable that they would if they believed it was necessary; it would soon be understood that these defects would invalidate all sales, and consequently but few could be found to purchase; the public revenue, so essential to the existence of society, would be greatly impaired, and the owner much injured by his property selling for little or nothing. The Court however, do not consider these proceedings as ex parte.

Agreeably to the practice and necessities of governments, where taxes are imposed on property, the proceedings to enforce payment must be inrem, and are analogous to such proceedings under the law of nations, where all persons are presumed to be parties.

Many of the lands of our country are owned by persons abroad, on whom personal notice could not be served, and if it was requisite to serve notice on each resident, the public revenue would be swallowed up by the expense attending its collection.

No government of which we have any knowledge has adopted this method of proceeding.

The law requires that every individual owning lands within the State should pay the taxes on it; every proprietor is presumed to know the law and that he should pay without demand or personal notice. In fiscal arrangements, the promulgation of the law is equivalent to the common-law idea of notice. Persons owning taxable property are bound to pay the taxes, though the directory provisions of the law may not have been complied with by the officers intrusted with the execution.

The ground of jurisdiction is afforded to the County Court by the existence of two facts: first, that the property taxed is situated within the county; secondly, that its owner is delinquent in discharging the taxes charged on it agreeably to law. When the Court see these two facts spread on the record, it is all that is necessary for them to see with a view to the legality of a judgment for taxes.

In support of a judgment of a court of competent jurisdiction, all directory requisites of the law are presumed to have been complied with. And this presumption attaches, as well to the judgments of inferior or limited courts as those proceeding according to the course of the common law. In the latter, a want of jurisdiction is never presumed.

In a court of limited powers, the reverse of this provision holds; and in the proceedings of all courts where jurisdiction of the subject-matter exists, and appears expressly or by presumption, the law presumes that the exercise of that jurisdiction was regular.

A summary mode of levying taxes on lands had been in existence previous to, and at the time of, the formation of the Constitution.

It was manifestly the intention of the convention that summary proceedings, such as the people had been accustomed to, should not be inhibited. The expression used in the Constitution, "law of the land," communicates the idea of such proceeding of the courts as had been customary, or should thereafter be provided conformable to the spirit of those habits; and of the common law. See 2 Hayw. 142, 320-322. The Constitution has no effect on these proceedings. The first and vital principle of all regular governments is a revenue to support its operation and existence. Without it the government must soon perish. All governments, to raise this revenue, lay taxes on property, and their proceedings necessarily must be summary and in rem as to that. Acts made for the attainment of these essential objects of the State must receive such construction as will effectuate the intention of the Legislature, where it is not opposed by the provisions of the Constitution, or restricted in the effect by legal principles applicable to the proceedings necessary to carry into effect that intention.

The Court is of opinion that the provisions of these acts are neither prohibited by the Constitution, nor restricted by legal presumption. See 2 Johns, 378, 913; Mass. 379; Camp. 217; Hardin, 372; 2 Hayw. 135; Add. 186; 1 Caines, 594; 4 Johns. 292; 2 Binn. 209; 3 Caines, 141, 152, 162; 1 Bay, 356, 357; 2 Bay, 105; Day, 170, 310; N. 312; Bull. N. P. 245; 2 Gould, ed. Esp. N. P. 468. c.

The judgment of the Circuit Court must be reversed, and the sheriff's deed given in evidence in support of the claim of the lessor of the plaintiff.