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to constitute the solemnity of a deed according to the principles of the common law. Besides, it is an established principle, that no estate of freehold, for life, in fee or in tail, can pass by an instrument or writing not under seal.2 And where the general statute law of the State declares that the manner of conveying freehold estates shall be "by writing, sealed and delivered," that law is as applicable to conveyances made by a public officer as to those executed by private individuals.

Such was the rule laid down in Doty v. Beasley,3 which was an action of trespass for cutting down and carrying away timber, and the defendant justified under a tax sale.. By the court: "He (the defendant) claims title by virtue of a purchase made from the register at his sales for taxes, the 28th day of November, 1800, and obtained a certificate of the purchase. On the 23d of October, 1805, he procured from the register what (we presume) was intended by them as a deed of conveyance. It is signed by the register, but he has failed to annex a seal to it. The act regulating conveyances, approved December 19th, 1796, declares that no estate of inheritance or freehold, or for a term of more than five years, in lands or tenements shall be conveyed from one to another, unless the conveyance be declared by writing, sealed and delivered.' This general regulation must have operation upon all conveyances, whether made by private individuals or public officers, unless there be some subsequent act changing its provisions. We have not found any provision to that effect."

*

The same principle was applied to a tax deed in Short*367 ridge v. Catlett. It is presumed, however, that under those statutes which authorize the sale and conveyance of a leasehold interest in lands, as in New York and South Carolina, the lease need not be under seal. The manner of sealing will of course depend upon the laws and usages of

1 1 Bibb, 333; 12 Johns. 197.

2 Jackson v. Wood, 12 Johns. 73; Same v. Wendell, 12 Johns. 355.

3 2 Bibb, 14.

4 1 A. K. Marsh. 587.

5 Fry v. Phillips, 5 Burr. 2827; Holliday v. Marshall, 7 Johns. 211.

Under the old reve

each State where the deed is executed. nue laws of Illinois, tax deeds made by the auditor of State, were sealed with the official seal of the auditor's office. Under the present laws, they are authenticated by the private seal of the conveying officer. And it is presumed that in all cases where the statute directs the execution of a tax deed, and is silent as to the manner of sealing it, the common law mode may be adopted; that is, the private seal of the person who executes the deed. Such are the decisions in Pennsylvania, relative to deeds executed by the county commissioners of the county, for land sold at tax sales; and where they use the seal of the county to authenticate the deed, it is held void.1 But it may be read in evidence, as the basis of an adverse possession.2 (a)

3. It is essential to the validity of a tax deed that it should be delivered by the officer, who is intrusted with the power of executing it, and that it should be accepted by the grantee named in it, or by some person authorized by him to receive it. In this respect, it stands upon the same footing as deeds executed between private individuals. It is not necessary that a patent should be delivered to the grantee of the government, in order to vest a title in him, but it becomes operative for that purpose when it is issued. A tax deed can be regarded in no sense as a patent. The distinction between them is obvious. A patent conveys the title of the government, and is under the hand of the chief executive officer, and the great seal of State; while a tax deed simply passes the owner's title, and is executed by the proper officer, under his own hand and private seal.3

* 4. The deed must recite the power under which it is * 368 made, otherwise it will be invalid. (b) It does not derive

1 Watt v. Gilmore, 2 Yeates, 330; Huston v. Foster, 1 Watts, 478.

2 McCoy v. Dickinson College, 5 Serg. & Rawle, 254.

(a) Under the Wisconsin Statute of 1859 the seal should be that of the county or municipality, and not that of the officer. Knox v. Huidekoper, 21 Wisc. 527. 3 Hulick v. Scovil, 4 Gilm. 159; Church v Gilman, 15 Wend. 658. (b) A deed in the form prescribed by statute 1852, § 5, is good, though it do not show on its face that it is executed under the special statute power. Falkner v. Dorman, 7 Wisc. 388.

its validity from its capacity as an independent conveyance, to transfer the estate described in it, but from the existence of the power, and a compliance with the conditions prescribed by the creator of it. The title is derived from the power, and the conveyance must bear upon its face an acknowledgment of the power in pursuance of which it purports to have been executed. This rule is applicable alike to all powers, whether public or private in their nature.1 The uniform practice throughout the country has been to conform to this rule. Every statute form of the deed not only recites the power under which it is executed, but usually recites a compliance with all of the requisitions of the statute by which the power was created. No instance can be found where a tax deed, or any other deed executed in pursuance of a public power, has been made in the form ordinarily in use among individuals in conveying land, and bearing no recognition upon its face of the power under which the officer acted.

5. Where the form of the deed has not been prescribed by law, but the statute simply authorizes the execution of a deed of conveyance to the purchaser, any deed, which, according to the rules of the common law, would be sufficient to transfer the title of the former owner, and vest the estate in the purchaser, is regarded as an operative mode of conveyance, provided it recites the power under which it was made, and is accompanied by proof that the law was strictly complied with.2 But where the statute prescribes the particular form to be observed in the execution of the deed, that form becomes substance, and must be strictly pursued, or the deed will be held void.3

In Maxcy v. Clabaugh, where the statute form of the * 369 deed * required a recital of the year for which the taxes were due, and the year was misrecited in the deed, it was

1 2 T. R. 241; Jackson v. Roberts, 11 Wend. 425; Tolman v. Emerson, 4 Pick. 160.

2 Chandler v. Spear, 22 Vt. 388; Brown v. Hutchinson, 11 Vt. 569; Spear r Ditty, 8 Vt. 419; Bank of Utica v. Mersereau, 3 Barb. Ch. 528.

3 Chandler v. Spear, 22 Vt. 388; Kinney v. Beverley, 2 Hen. & Munf. 531; Smith v. Hileman, 1 Scam. 323; Atkins v. Kinnan, 20 Wend. 249; Breese, 4; 15 Vt. 72; 22 Pick. 387; 11 Mass. 281; 1 East, 64; 1 Cowp. 32; 5 Gilm. 96; Boardman v. Bourne, 20 Iowa. 134.

held void.1 (a) On the other hand, where the statute did not require the deed to state in what year the tax was assessed, for the non-payment of which the premises were sold, it was held valid.2 In the case last cited, which was an equity case, it ap peared that the statute of New York required the comptroller's deed to be executed "in the name of the people of the State;" and the deed offered in evidence did not purport to be so exe

11 Gilm. 26. The form of the tax deed prescribed by the Illinois statute of January 26, 1826, was as follows, to wit:

The auditor of public accounts of the State of Illinois, to all who shall see these presents, greeting: Know ye that whereas I did, on the day of, at

the town of Vandalia, in conformity with all the requisitions of the several acts in such case made and provided, expose to public sale, a certain tract of land being (here insert the description of it), for the sum of being the amount of

taxes for the year of (or years of, as the case may be), with the interest (if any) and costs chargeable on the said tract of land; and whereas, at the time and place aforesaid, A. B. offered to pay the aforesaid sum of money for (the whole tract or part thereof, as the case may be) which was the least quantity bid for; and the said has paid the sum of into the treasury of the State. I have granted, bargained, and sold, and by these presents, as auditor of the aforesaid State, do grant, bargain, and sell (here describe the tract purchase) to the said A. B. (or C. D., his assignee), his heirs and assigns; to have and to hold the said tract of land, to the said and his heirs for ever; subject, however, to all the rights of redemption provided for by law. In testimony of which, the said auditor has hereunto subscribed his name, and affixed his seal, this day of Auditor.

The form now in use in that State will be found ante, p. * 197.

[SEAL.]

(a) Where the statute provided that a tax might be levied by sale if "not paid within fourteen days after demand, &c.," and required that the deed should state the cause of sale, a deed was held invalid which did not state that the tax was not paid within fourteen days after demand. Harrington v. Worcester, 6 Allen, 576.

In Wisconsin, a tax deed under c. 66 of Laws of 1854, is rendered void by the omission of the words, "as the fact is," in the recital relative to the sale and that relative to redemption. Lain v. Cook, 15 Wisc. 446; so when those words are contained in the recital as to sale, but omitted in the recital as to redemption. Wakeley v. Mohr, 18 Wisc. 321.

That the failure to recite one of the requisites to a valid levy of a tax, in a deed in which all the proceedings had in such levy and all other proceedings essential to its validity are set out, is evidence by implication that the requirement omitted was not complied with, see Long v. Burnett, 13 Iowa, 29. But see Pleasants v. Scott, 21 Ark. 370; Budd v. Bettison, id. 582; Moss v. Shear, 25 Cal. 38; Gavin v. Shuman, 23 Ind. 32.

The recital that certain facts appear from the records of the auditor's office is not equivalent to the recital that they exist. White v. Flynn, 23 Ind. 46. 2 Bank of Utica v. Mersereau, 3 Barb. Ch. R. 528.

cuted; but it was proven upon the hearing, that such had been the form used for twenty-five years. The deed was held valid. 1. Because the maxim, "that custom is the best interpreter of the law," was applicable in this case. 2. That the deed, though not technically executed in the name of the people, recited the statutes under which the sale was made, and a compliance with all of their requisitions, that the taxes were due to the State of New York, that the purchase-money was paid into the treasury

of the State, and the deed was executed by the comptrol* 370 ler of the State; and no one could doubt, upon an inspection of the deed, that it was the intention of the officer who made the conveyance, to convey the premises described in it, for and in behalf of the people of the State, and not as an individual acting in his own right; and, 3. That if the error in the form was a material one, it would not justify a court of equity in declaring, that the purchaser had no right to the land by virtue of his purchase; but the comptroller, if necessary, would be compelled to execute a new deed in the proper form.

6. Where the date of a tax deed was left blank, the court presumed that it was executed and delivered prior to the passage of a statute which, it was contended, took away the power of the officer to make the deed. The date of the deed may be proved by parol, and in the absence of evidence, it will be presumed to have been made at the proper time.1 This is in accordance with the general rule; the date is regarded as nonessential, the deed taking effect from its delivery, and when the date becomes material, in the course of a litigation, an omission may be supplied, or the deed contradicted, where a wrong date is given, by extrinsic evidence. The law, however, will presume that a deed was delivered on the day of its date.2

7. Where the statute is silent as to the acknowledgment of the deed, it is not essential to its validity. (a) And where the statute expressly requires an acknowledgment, it is presumed 1 Thompson v. Schuyler, 2 Gilm. 271.

22 Lord Raym. 1076; Perkins, 120; Touch. 55; 1 Cranch, 239; 4 Com. Dig. tit. Fait. (B. 3); 2 Blackst. Com. 304; 2 Johns. 230; 4 Johns. 230; 4 East, 477; 1 Bibb, 619; 9 Cow. 255; 6 Munf. 555; 5 Johns. 139.

(a) See Stierlein v. Daley, 37 Mis. 483; Dalton v. Fenn, 40 Mis. 109.

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