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Brown v. Goodwin.

The deed and its recitals furnish the only evidence of the proceedings to sell, and of the sale by the government of the United States of the premises in question, and of the validity of the title of Hubbard.

T. C. Cronin, for plaintiff.

William Fullerton, for defendant.

VAN VORST, J.-The first question to be determined, is, whether the plaintiff has such legal or equitable relation to, or interest in the land in question, as to be entitled in any event, to maintain an action for the removal of the lis pendens, or for the exoneration of the land from the lien and effect of the judgment, by which it was decided that Marquis D. L. Sharkey had an "equitable interest" therein, to the extent. of $12,000, anterior to, and at the time of the seizure and sale thereof by the collector of internal revenue, and which equitable interest was ordered by that judgment to be applied to the payment of the judgment in favor of William Goodwin against Sharkey.

The determination of that question is controlled by the conclusion, as to whether or not a valid sale of the land is proven to have been made, by the collector, for the non-payment of the internal revenue tax imposed upon the members of the various firms, of which Gertrude W. Sharkey was a member. For if Hubbard acquired no title by the alleged sale under the warrant, the plaintiff, as his grantee, having no better title than her grantor, could not maintain this action.

The plaintiff, as far as this particular question is concerned, rests her case exclusively upon the recitals in the deed executed to Hubbard, by Silas W. Smith, the collector of internal revenue, to whom the warrant was issued, and by whom the sale was made. Section 3198 of the United States Revised Statutes, states that "upon any sale of real estate, as provided in the preceding section, and payment of the purchase money,

Brown v. Goodwin.

the officer making the seizure and sale, shall give to the purchaser a certificate of purchase, which shall set forth the real estate purchased, for whose taxes the same was sold, the name of the purchaser, and the price paid therefor:" and if the land was not redeemed, the collector should execute to the purchaser, upon his surrender of the certificate, a deed of the real estate purchased by him, "reciting the facts set forth in said certificate, and in accordance with the laws of the State in which such real estate is situated, upon the subject of sales of real estate under execution."

Section 3199 provides that "the deed of sale, given in pursuance of the preceding section, shall be prima facie evidence of the facts therein stated, and if the proceedings of the officer as set forth, have been substantially in accordance with the provisions of law, shall be considered, and operate as a conveyance of all the right, title, and interest, the party delinquent had in and to the real estate thus sold, at the time the lien of the United States attached thereto." The deed in evidence contains all the facts required by the statutes to be included therein. It sets forth the real estate sold, for whose taxes the same was sold, the name of the purchaser, and the price paid therefor; and contains all that would be required to be recited in a sheriff's deed upon the sale of real estate, sold under execution, by the laws of New York; and of the facts so stated, the deed is, without doubt, prima facie evidence.

By section 3186 of the United States Revised Statutes, the United States could only acquire a lien on real estate, upon the neglect or refusal on the part of the person liable to pay the tax after the same shall have been demanded.

Section 3187 provides that if any person liable to pay any taxes, neglects or refuses to pay the same, "within ten days after notice and demand," it shall

Brown v. Goodwin.

be lawful for the collector, or his deputy, to collect the said taxes with five per centum additional thereto, &c., &c.

From which it would seem that a notice and a demand of the payment of the tax, after it has been imposed, is a distinct act to be performed on the part of the agents of the government, and that the tax is, and continues a personal liability only, until its payment is demanded, when, if payment is refused or neglected, it becomes a lien on property and can be satisfied thereout.

It would be an oppressive system which would tolerate the imposition of taxes, and then, without notice or demand, condemn the property of the person liable to pay, to sale. But such is not the law.

The deed does not recite any notification or demand of the tax, nor any refusal or neglect to pay the same, nor do the sections of the statutes above referred to, require that either the certificate or deed should state such facts. But that does not dispense with the necessity of proof of such acts.

There is no evidence that any notice of the tax was ever given to Mrs. Sharkey, or to the other persons against whom, with her, they were assessed, nor of any demand being made of her, or them, for the payment of the same, nor of any neglect or refusal on her or their part.

It is the right, title, and interest, which Gertrude W. Sharkey alone, had in the premises, at the time the lien of the United States attached, which was sold and conveyed, or pretended to be. Such is the effect of the deed. There is no evidence that any member of the firms, liable for the taxes, had any interest in the land, but herself.

As the deed, therefore, professes to convey only the interest Gertrude W. Sharkey had in the premises, at the time the lien of the United States attached, the

Brown v. Goodwin.

question arises, did any lien exist in favor of the United States, at the time of the sale and conveyance by the collector, and did any estate or interest pass under the deed?

It is urged by the plaintiff's counsel, that the issuing of the warrant to the collector, is itself a demand of payment.

I do not regard the issuance of this warrant, of which it does not appear that Mrs. Sharkey had any notice, as an equivalent for the demand directed by the statute, but rather as the effective means for the sale of her property, after the notice and demand had been actually given and made, and there had been a refusal or neglect on her part to pay (§ 3187, supra).

Proceedings of the character in question, initiated, and in all their essential details, regulated by statute, are strictly scrutinized, and the provisions of the statute should be sedulously complied with. It is only upon the occurrence of the neglects and defaults indicated, that property may be sold.

In Williams v. Peyton (4 Wheat. 77), it was held, that in case of a naked power not coupled with an interest, every prerequisite to the exercise of the power should precede it. That a party who sets up title must furnish the evidence necessary to support it. That if the validity of a deed depends upon an act in pais, the party claiming under the deed is bound to prove it. That in the case of lands sold for the nonpayment of taxes, the marshal's deed is not even prima facie evidence, that the prerequisites required by law have been complied with. That the party claiming under the deed must show that the requisites have been discharged. That in such case it was necessary to prove a previous demand for, and non-payment of the

tax.

In Mahen v. Davis (4 McLean, 211), a deed given on a tax sale, which failed to show that a notice before

Brown v. Goodwin.

sale had been given, was held to be void. That it was necessary that the requisites of law, through which an individual is deprived of his property, should be complied with (Jackson v. Shepard, 7 Cow. 88; Parker v. Overman, 18 How. U. S. 137; Osterman v. Baldwin, 6 Wall. 116).

Section 3197 provides what the officer shall do after seizing the real estate. He is required "to give notice to the person whose estate it is proposed to sell, by giving him in hand, or leaving at his last or usual place of abode, if he has any such, within the collector's district, where said estate is situated, a notice in writing, stating what particular estate is to be sold, describing the same with reasonable certainty, and the time when, and the place where, said officer proposes to sell the same, which time shall not be less than twenty, nor more than forty days from the time of giving said notice."

The same section also calls for a publication to the same effect, in some newspaper within the county where the seizure is made, and also for the posting of the same at the post-office nearest to the estate to be seized.

In order to have made a valid sale of the premises in question, the requirements of this section should also have been complied with (Williams v. Peyton, supra; Stead v. Course, 4 Cranch, 403).

It is true that section 3199 provides that "if the proceedings of the officer, as set forth, have been substantially in accordance with the provisions of law," the deed shall be considered and operate as a conveyance of all the right, title, and interest the party delinquent had in the real estate, at the time the lien of the United States attached thereto.

But, as already suggested, a previous notice and demand is a substantial prerequisite to create a lien on property, and as to that the deed is entirely silent, nor has this defect been cured by extrinsic evidence.

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