Barry's Lessee v. Rheas.

Counsel

DICKINSON, for the defendant, took several objections to the reading of this record. 1st. The statement by the clerk is merely historical; he should have given a copy. 2d. Copies of the report of the sheriff and order of court for advertising the land should be shown. STEWART, SHARP, and WHITESIDE, for the plaintiff, insisted that, as between the purchaser of land and third persons, the Court will not examine the regularity of the proceedings previous to judgment. It is only necessary to show the judgment and execution. But the proceedings were regular, for the clerk was not bound to give an exact copy showing every person's lands that were ordered to be sold by the same order. It is only necessary to show what is of record. The course of rendering lands liable to taxation is this: Commissioners are appointed by the county courts for taking lists in each captain's company at the last court in the year preceding the one for which the taxes are to be collected. After notice they take lists of every person, and report what property they can find, for which lists are not given in. Should these commissioners omit to report to the County Court such omitted property may be reported by the respective sheriff. Those who fail to return lists are liable to a double tax. The clerk of the county in which the land or property is situated, after the time allowed for returning lists and making reports, is to make out for the use of the sheriff or collecting officer a consolidated list from the returns of the different justices; their report and the sheriff's showing the amount of taxes of each person, which, says the law, is to be a lien 011 the property for the State tax. The collectors in each county collect the taxes of that county, both for State and county purposes. If the collecting officer, usually the sheriff, shall not find any personal property, on which he can distrain for the taxes, and there is real property to which he can resort, he shall report all such cases to the County Court, who shall cause it to be advertised in a gazette published within the district wherein the land lies, if there be one, if not, the nearest, and also in the gazette of the public printer, stating the taxes due, and setting forth that the same will be sold for taxes. After this the Court enters up judgment, and execution issues as in other cases; advertising the lands for sale in the same papers as in other cases of selling lands under execution the collecting officer makes a deed. [fn1] The law does not require a report to be recorded, it is only evidence to the Court. All that we are bound to show is, that it was ordered to be advertised, the judgment, execution, and sheriff's deed; even taking these as the proceedings of a court of limited jurisdiction, and that it ought to appear upon what ground the Court acted, which is not admitted, we have shown enough. But we are not bound to show the evidence on which the Court decided. DICKINSON, in reply. — The Court are not to anticipate what defence can be set up. Sales for taxes are strictly looked into; it was so said in relation to sales under the direct tax in the Federal Court, and the Court there said it would see that the powers given to officers had been pursued. Suppose the taxes had been paid, the whole proceedings would be void. The record ought to show that the taxes were not paid. It is true that in 2 Haywood, 80, the judges were divided, whether it were necessary to show a judgment upon a sheriff's sale. In this State, however, it has always been thought necessary. [fn1] This statement of proceedings in the sale of property for taxes, is a correct general description, but by the Act of 1807, c. 21, some alterations have taken place, among which it is enacted, that if any person shall have failed to give in his list on oath he may do it before the first day of May, in the year for which the taxes were to be paid to the clerk of the county. If neither is done, a double tax is incurred. It makes it the duty of the collecting officer at the first court, after the first day of January (in the year succeeding that in which the tax was payable) to report to the Court all such lands for which the taxes were not paid; and such as he had discovered not to have been given in, the preceding year. After recording the report, the Court enters up the judgment for the double tax, and it is directed to be advertised in some newspaper at Nashville and Knoxville, or in the district where the land lies, twice, at least three months before the day of sale, which in every county shall be on the first Monday of July (November now) and succeeding day, at the court house; and no sale of lands shall take place until the year succeeding that for which the tax shall be owing. After sale the owner is allowed twelve months from thence to redeem by paying the charges and one hundred per cent thereon.