The Arkansas statute of 1838,1 provided, that the "auditor's deed shall vest in the purchaser all the right, title, interest and estate of the former owner in and to such land, and also all the right, title, interest and claim of the State thereto; and shall be evidence in all courts of this State, of a good and valid title in such grantee, his heirs and assigns, and that all things required by law to make a good and valid sale, were done both by the collector and auditor." In the case of Steadman v. Planters' Bank,2 which was an ejectment to recover land sold under this statute for the non-payment of taxes, the plaintiff offered his tax deed in evidence. The Circuit Court excluded it, upon the ground that the deed was not evidence of any fact not recited in it. On error, the Supreme Court reversed the judgment of the Circuit Court, holding that the statute under which the deed was executed changed the common law, and made the deed evidence of the regularity of all the proceedings ⚫ of the collector and auditor. [And although the language of later statutes in Arkansas is somewhat different from that of 1838, the decisions are harmonious that such deed is prima facie, and only prima facie evidence of the regularity of the proceedings; and although the deed contains recitals of every prerequisite prescribed by the statute, yet if the land was misdescribed in the advertisement of the tax sale, the deed is invalid. The statute also enacts, that a deed in the usual form should be "sufficient evidence of the authority under which said sale was made, the description of the land, and the price at which it was purchased." It was held in Parker v. Overman, that the term "sufficient" meant merely prima facie, and was not conclusive. But this clause means, that such deed shall be prima facie evidence that the steps prerequisite

3

1 See the late Arkansas statutes on this subject, in Goold's Digest of Arkansas Statutes, ch. 148.

2 2 English, 424, 428. [And this rule and case was distinctly approved in the late case of Bettison v. Budd, 17 Arkansas, 556.]

8 See Hogins v. Brashears, 13 Arkansas, 242; Merrick v. Hutt, 15 Arkansas, 338; Roberts v. Pillow, 1 Hempstead, 624; 13 Howard (U. S.), 472; Thomas v. Lawson, 21 Howard (U. S.), 332.

Patrick v. Davis, 15 Arkansas, 363.

5 18 Howard (U. S.), 142.

to the sale, and which constitute the authority of the officer to sell, have been regularly taken, as well as of the description of the land, and the price at which it was purchased; and that the party impeaching the deed must prove irregularities, in order to invalidate the sale.1 By a deed "in the usual form" under that act, is meant a deed which substantially recites the material steps which the law requires to constitute a valid tax sale, including a proper description of the land, the price paid, with words granting the land to purchasers, &c., and if it fail to recite any fact material to the sale, the party relying on the deed must prove that fact aliunde.2 If the deed recites that the owner of the land was a non-resident, it is prima facie evidence of that fact, the deed being regular on its face.3]

The New York statute of April 10, 1850, declares, that the tax deed" shall be presumptive evidence that the sale, and all proceedings prior thereto, from and including the assessment of the land, and all notices required by law to be given previous to the expiration of the two years allowed to redeem, were regular according to the provisions of this act, and all laws directing or requiring the same, or in any manner relating thereto."

1 Bonnell v. Roane, 20 Arkansas, 114. See Merrick v. Hutt, 15 Arkansas, 338. 2 Bonnell v. Roane, 20 Arkansas, 114.

3 Hunt v. McFadgen, 20 Arkansas, 277.

CHAPTER IV.

OF THE ELECTION AND QUALIFICATION OF THE SEVERAL OFFICERS WHO HAVE ANY THING TO DO WITH THE EXECUTION OF THE POWER.

Ir is a general principle of law, that whenever a right is claimed under the proceedings of one who purports to have acted in an official capacity, the fact that he who did the act upon which the right is based, was a public officer, must appear. This is especially applicable to a case where a title to real estate is to be divested under the authority of a statute, and through the intervention of a public officer. The statute being the authority, and the officer the agent to execute it, and no one being empowered to do the act except the person specially designated in the law for that purpose, it follows that a stranger to the power cannot execute it. The power is conferred upon the officer, not the man. It is an official, not a personal trust. It does not rest upon confidence, but upon official responsibility.

Hence, the only security of the proprietor of the estate, is in the official character of the person to whom the power is committed. This security mainly depends upon the responsibility of the officer to the government, the sanctity of his oath of office, and his liability to those whose rights are violated by his wrongful acts. It may, therefore, be safely affirmed as a general rule, that the party claiming title under a tax sale must show that the acts required to be done under the statute, in order to divest the title of the former owner, were performed by the officers of the law, and not simply by persons who assumed to act in an official capacity. The citizen is entitled

to all of the protection against fraud, rapacity, and abuse of authority in the sale of his property, which official responsibility can secure. It therefore becomes an important question to ascertain who is an officer, within the meaning of this rule. A resort to general principles is necessary, in order to determine the question, especially as the authorities are conflicting. An office is defined to be, a public charge or employment; and he who performs the duties of that office, is an officer.2 There is no such thing known to the law as an office de facto,3 nor can there exist such an anomaly as an officer de jure, and one de facto, in the possession of an office, at the same time. But it very frequently happens that one has the title, while another is in possession of the office under a claim of right. The distinction between an officer de jure-one who is de facto suchand a mere usurper, is well known and clearly settled, and the consequences naturally arising from these distinctions are equally well settled. An officer de jure has the legal title to, and is clothed with all the power and authority of the office. He has a title against the world, to exercise the functions of the office, and receive the fees and emoluments appertaining to it. He is responsible to the government and injured parties, when he abuses his trust or transcends his authority. And his acts, when within the scope of that authority, cannot be questioned by the citizen or any department of the government.5 An officer de facto, is one who comes in by the forms of an election or appointment, but in consequence of some informality, omission, or want of qualification, or by reason of the expiration of his term of service, cannot maintain his possession, when called upon by the government to show by what title he claims to hold the office. He is one, who exercises the duties of an office under claim and color of right; being distinguished

1 Birch v. Fisher, 13 Sergeant & Rawle, 208; Payson v. Hall, 30 Maine, 319.

2 United States v. Maurice, 2 Brockenborough, 102; s. c., Marshall, Decisions, 470. Hildreth v. McIntire, 1 J. J. Marshall, 206.

4 Boardman v. Halliday, 10 Paige, Ch. 223. McGregor v. Balch, 14 Vermont, 428.

on the one hand, from a mere usurper, and on the other, from an officer de jure. The mere claim to be a public officer, or the performance of a single, or even a number of acts in that character, will not constitute an officer de facto: there must be some color to the claim, under an election or appointment, or an exercise of official functions, and an acquiescence on the part of the public for a length of time, which would afford a strong presumption of a colorable right. The definition of Lord Ellenborough is probably more accurate and expressive than any other: "An officer de facto is one, who has the reputation of being the officer he assumes to be, and is yet not a good officer in point of law."2 He who intrudes himself into an office which is vacant, or ousts the incumbent, without any color of title whatever, and assumes to execute the duties of the office, is a mere usurper, and his acts are void in all respects.3

The consequences naturally arising from the distinction between an officer de jure and one de facto are well settled. An officer de jure is clothed with all the power and authority appertaining to the office, and his acts, within the limits of his authority, cannot be questioned any where; while the acts of an officer de facto are valid so far only as the rights of the public or third persons, having an interest in such acts, are concerned. Neither the title of such an officer, nor the validity of his acts as such, can be indirectly called in question in a proceeding to which he is not a party. The effect of this rule is, to render the acts of an officer de facto as valid and effectual as though he was an officer de jure. The interests of the community imperatively require the adoption of such a rule. The affairs of society could not be conducted upon any other principle; without it, there would be an entire failure of justice.

1 McGregor v. Balch, 14 Vermont, 428; Aulanier v. The Governor, 1 Texas, 653; Plymouth v. Painter, 17 Connecticut, 585; Tucker v. Aiken, 7 New Hampshire, 140; Margate Pier v. Hannam, 3 Barnewall & Alderson, 266; s. c., 5 English Common Law, 278; Wilcox v. Smith, 5 Wendell, 234.

2 The King v. The Corporation of Bedford Level, 6 East, 368.

8 Tucker v. Aiken, 7 New Hampshire, 140.