This case has been here before, 15 Iud. 93. After it was returned, there was a trial, verdict, and judgment for Shuman, the defendant, over a motion for a new trial.
The points made now, and urged in the brief of the appellant, arise upon instructions given and refused.
This was a suit by Gavin to quiet the title to forty acres
The real question is whether the title passed out of him by virtue of a sale for taxes accrued in 1853 and 1854. It appeared he owned eighty acres of land adjoining this, upon which a tenant resided, he being a non-resident of the said county, and upon which there was, in each of said years, more than enough personal property of said 8hu-man to pay the taxes. It further appeared that he was assessed with and had paid taxes upon one hundred and twenty acres of land; but that this forty-acre tract wa.s not in the description, perhaps by mistake; that point is not clear; but that the same was charged to one Wooldridge, who did not reside in said county. It further appears that said forty acres is unimproved, uninclosed woodland; that it was described as the north-east quarter of the south-west quarter of a certain section; and that Shuman had a tenant and personal proj>erty on the west half of said quarter section which he owned. No personal property was assessed to Shuman or Wooldridge, so far as appeared by the tax duplicate, nor did the treasurer search for any, nor demand any upon said lands. The assessor’s rolls for 1853 and 1854 could not be found, nor the book of the appraiser of real estate in 1851. No evidence was given of their contents other than that of the auditor, who testified that it was his custom to transfer the assessment to the duplicate, and that he made out the duplicates for 1853 and 1854.
It is argued that it was the duty of the tax-payer to list his land. That is true, and we know not but that if the appraiser’s book could have been produced, it was so listed. But it is further urged that it was his duty to see that it was properly carried on to the duplicate by the auditor,
It is said that “ each and every step, from the listing of the land for taxation to the consummation of the title by delivery of a deed to the purchaser, is a sejxarate and independent fact. All these facts, from the beginning to the end of the proceeding, must exist; and if any material link in the chain of title be wanting, the whole falls to the ground for the want of sufficient authority to support it.” Blackwell on Tax Titles, p. 65. Upon a careful examination of the above cases, and many more therein cited, it will, we think, be found that the proposition thus laid down by this authoi’ity is well suppox’ted in all substantial particulax’s. But we are referred to our statute as follows:
“ Such coxxveyance shall be executed by the county auditor under his hand and seal, and the execution thereof shall be witxxessed by the county treasurer, and such' deed shall be conclusive evidence of the truth of all the facts therein recited, with the exception of the fact that the payment of the taxes, for which the lands named -therein were sold, had not been made by or on behalf of the proper owner of such lands ixx due time axxd to the proper officer,
This statute is clearly in derogation of the common law in regard to the question upon whom the burden of proof rests; for, in sheriff’s sales, regular proceedings from the judgment to the sheriff’s deed have to be shown by the person claiming under such deed; so under a deed by an attorney or executor or guardian. Certainly the power under which these persons act should not be more strictly pursued, nor their acts subjected to more critical examination, than that of the officers who sell in the collection of taxes “ acres for cents.”
Then, this statute quoted should be construed strictly. In that view, passing the question of the power of the legislature to make such a deed conclusive evidence, we will examine and compare this statute and the recitals in the deed. We might say that the evidence is in the record, and if, upon an examination thereof, it is clear that the judgment is right upon that evidence, we will not stop to examine the instructions given or refused.
The laws upon the subject of the listing, assessment, and appraisement of property require the performance of several acts in the line of official duty about which no proof was offered, and in reference to which there are no recitals in the deed of the auditor. There is no recital in the .deed nor proof offered on the trial in regard to the levy of a county tax, which the law requires the board of county commissioners to fix in June. 1 Gr. & H., p. 68. The statute requires the appraiser of real property to take an official oath; there is no recital nor proof that he did so. Id. 85. The auditor is required to make out and deliver, by the 15th day of October, a duplicate to the treasurer, and which said treasurer is to receive; there is no recital nor proof upon either of these points. Id. 94-97. It is likewise required that the county commissioners, auditor, and assessors shall meet on the first Monday of June, and form a board of equalization to hear, etc. Id.
It is not necessary for us to decide that a failure upon the part of the plaintiff to prove the performance of any one of these duties would have been fatal to his case. It is enough, in the case at bar, for us to say that certainly the failure of the'proper officers, to act as directed in the several instances named, would present such an imperfect record of the chain of proceedings as would be fatal to any attempt under it to confer title upon a purchaser at a sale dependent upon such record. If the record existed, it should, as to these and perhaps other particulars, have been recited, or if not recited, proof made thereof. In the absence of any evidence, under the rules of the common law, or that which by statute supplies its place, we can only conclude that there was such' a substantial want of proof as authorized the verdict of the jury and the judgment of the court thereon.
Per Curiam.—Judgment affirmed.