192 F. 775 | 6th Cir. | 1912
The only question passed, upon below and in express terms assigned as the subject of error is whether
For the purpose of showing that plaintiffs were not the owners of the land, defendants introduced a certified copy of a tax deed, dated July 3, 1850, executed by the tax collector of Rhea county to one Gillespie, in which it is recited that a judgment was rendered in the circuit court of Rhea county on March 8, 1843, in favor of the state for taxes, costs, and charges due and unpaid for the year 1839 against the land, of which Rice was the reputed owner; that after advertising and giving the notice required by law, the collector sold the land on the first Monday of July, 1843, at public sale, to Gillespie; and the deed was executed seven years later by a successor of the collector making the sale.
We take it that it was admitted by the plaintiffs in .the court below that the taxes for the year 1839 accrued on the 10th of January of that year, when Rice still appeared by the deed register to be the owner; for in the original briefs filed here for plaintiffs and defendants, the counsel for both sides proceeded upon that theory. The learned trial judge held that since the original deed from Rice to Washington was not found in the possession of the plaintiffs or others through whom they claimed, “the only presumption of the delivery .of that deed at all arises from the fact of its registration,” and upon motion a verdict was directed for the defendants.
It is apparent that if the presumption of delivery must be applied to the date of registration and the taxes accrued in the sense that they became a lien on January 10, 1839, the direction to the jury was correct; because, in spite of the date of the deed (December 5, 1838) and the date of its acknowledgment (December 6, 1838) the lien accrued prior to- the date of registration, January 19, 1839, in White county, and January 26th following, in Rhea county. If either of the hypotheses stated is erroneous, it is equally plain that it was error to direct a verdict.
What is the object of this legislation? It is not contended, as in reason it could not be, that it is beyond the power of the Legislature to enact that instruments, safeguarded as these are, shall be admissible as prima facie evidence, of course not as conclusive evidence. Marx v. Hanthorn, 148 U. S. 172, 181 to 183, 13 Sup. Ct. 508, 37 L. Ed. 410; Mobile, J. & K. C. R. Co. v. Turnipseed, 219 U. S. 35, 42, 31 Sup. Ct. 136, 55 L. Ed. 78, 32 L. R. A. (N. S.) 226. If these statutes do not mean in a' prima facie sense that the certified copy shall be considered as an evidential substitute for the original, it is difficult to ascribe to the legislation any serviceable purpose, except possibly mere notice. It could hardly be claimed that this legislation makes one part of the certified copy evidence and not another, without doing violence to the language of the statutes. They provide that the certified copy — that is, the whole copy — shall be evidence.
In 1844, in Saunders v. Harris, 5 Humph. (Tenn.) 345, 346, when denying admissibility to a copy of a bill of sale executed in Georgia under a system of registration that was intended to give notice merely of the existence of such instruments, and not to create and perpetuate record evidence of their execution, it was said of the Tennessee system:
“The pervading principle of our whole registration system being to prove and perpetuate a valid execution of instruments, as well as to give notice of their existence.”
Again, in Tate v. Lawrence, 11 Heisk. (Tenn.) 503, 511, it is said:
“The objects of our registration laws were to preserve the muniments of title — to perpetuate the evidence of their valid execution — to give to the community notices of the changes in ownership of property. [Yerger v. Young’s Heirs] 9 Yerg. (Tenn.) 37; [Saunders v. Harris] 5 Humph. (Tenn.) 345; 4 King’s Dig. § 10,336.”
And continuing, respecting the requirement in 1805 of .two subscribing witnesses, it is said (11 Heisk. [Tenn.] 512) :
“Thus it will be seen that these' statutes have gradually been amended and improved upon until the registration policy has been settled for more than 40 years, that such instruments must either be proven by the acknowledgment of the bargainer or by the testimony of two subscribing witnesses.”
It is admitted by defendants’ counsel, and, on the authority of Kirkman v. Bank, 2 Cold. (Tenn.) 397, 402, McEwen v. Troost, 1 Sneed, 186, 191, 2 Greenleaf on Evidence, § 297, it was said by the court below that “where the original deed is in the possession of the grantee and is offered in evidence by him, such possession is of itself
“We think tlie copy of this deed, as registered, is prima facie evidence of the truth of its contents; that the date is a part of the deed, and, when Gan-non acknowledged the execution of the deed, he acknowledged its execution on the day it hears date.”
In Land Co. v. Hilton, 121 Tenn. 308, 312, 120 S. W. 162, 163, under issues made upon a bill to recover possession of land, complainant relied upon adverse possession for more than seven years under color of title. In complainant’s deraignment of title, the time of delivery of the deed relied on to show color of title became in the course of the trial of vital importance. So far as the report of the case is concerned, it does not appear whether the original deed or a certified copy of it was offered in evidence; but counsel for complainants in the present case states it to be a fact shown by the record of the case that the original document was not introduced, bnt simply a certified copy. This was called to the attention of the court below in the present case and accepted as a fact; and defendants do not dispute the matter here. It appears by the opinion that the validity of the deed was attacked “(1) for insufficiency of the description of the land, and (2) because it does not appear that said deed was ever delivered.” Upon the question of delivery of the deed it was said (121 Tenn. 320, 120 S. W. 165):
“It is insisted that the deed dated November 20, 1852, was not acknowledged until November 22, 1858, and, defendants insist, was not delivered until acknowledged. * * * It is insisted on behalf of complainant that the presumption of law is that where a delivery is necessary the deed is delivered on the day it bears date.”
After making some citations and comments it was further said (121 Tenn. 321, 120 S. W. 166) :
“But we find that the decided weight of authority is that delivery, in the absence of proof to the contrary, is presumed to have been made at the date of the deed, although its acknowledgment appears to have been made at a subsequent date;” citing a number of decisions on that page and the one following.
And as to Land Co. v. Hilton, since the instrument offered in evidence under which color of .title' was claimed turns out to have been a certified copy of the original deed, it is rather a strain on language to say that the court did not intend to give the ordinary meaning to the words “delivery, in the absence of proof to the contrary, is presumed to have been made at the date of the deed.”
The case which seems to have been most controlling upon the court below is Davis, Adm’r, v. Garrett, supra, 91 Tenn. 147, 18 S. W. 113. The present'Mr. Justice Lurton, while judge of the Supreme Court of Tennessee, delivered the opinion. Mrs. Bryant prosecuted an appeal from a decree, charging her with the value of a negro slave as an advancement. Her father, in 1859, had tried to make her a gift of the slave by deed. The . donee was then about seven years of age and residing with her father. The subject of the gift was then on the premises and continued there until she voluntarily left after her emancipation. The deed was signed by the donee’s father and attested by three witnesses. A few days after its date the donor personally acknowledged its execution before the clerk of the county court, and thereafter “caused it to be registered.” 91 Tenn. 149, 18 S. W. 113. The deed was left in the register’s office and was found there pending the trial of the questions in suit. Judge Lurton placed stress on the fact that the donee was, at the time of the attempted gift, only- seven years of age and residing with her father. The court was called upon to work out the natural sequence of events from the facts proved. It was said (91 Tenn. 152, 18 S. W. 113):
“The donee was incapable of understanding the transaction and a formal delivery of the deed to her would have been so extremely formal as to have been farcical.”
And further (150):
“This deed was either registered by direction of the donor or by direction of some one to whom he had delivered' the deed.”
The court, presumed the registration to have been by. direction of the father “ás the most probable.” It is trúe that the court .referred
“That case goes to the verge oí the law, and should be limited to its facts.”
Upon the whole, the court held in substance in the Davis Case that since the father must have been the one most interested in perfecting the gift he intended to make to his infant daughter, a presumption of delivery would be indulged from the fact of registration. This interpretation of the transaction was ascribing to the father the most natural and probable course of conduct he could have pursued with reference to his infant daughter.
The other decision that seems to have been regarded as also controlling in the court below is Cumberland Land Co. v. Daniel, 52 S. W. 446 (Tenn. Ch. App. in 1899). The land company claimed land under a grant of the Grand View Land Company, dated June 6, 1896. May 19, 1897, Daniel and another each obtained a judgment against the latter company. May 22, 1897, execution was issued on each judgment, and on May 26th orders of sale were entered. The proof showed that the deed was made and filed for registration at 11:47 a. m., and that complainant’s charter was granted at 4:16 p. m. of the same day. The object of the suit was' to have the execution sales enjoined, because at the dates of the executions and orders' the land had passed from the Grand View Company to the Cumberland Company; but the defense was that the Cumberland corporation did not exist at the time of the filing of the deed for registration, and that the grant was void for want of a grantee. Under a statute of Tennessee enacting that any obligation made in favor of an association either as an actual or pretended corporation, which afterward becomes incorporated, shall be binding in favor of the body corporate, it was held that when the levies upon the lands were made they were void, provided the deed had been delivered. 52 S. W. 450. The original deed appears to have been in the possession of the grantee company. In view of the statute alluded to and the construction that the court placed upon it, since the original deed was found in possession of the grantee, it is difficult to see how the question of delivery passed upon could have arisen. The court, however, followed the rule laid down by Judge Lurton in Davis v. Garrett, supra. The result is that the two cases seemingly relied on are alike as respects the competency of the grantees at the times respectively in issue, to accept a deed or present it for registration; because it will be recalled that the grantee named in the deed involved in Davis v. Garrett was at the time only seven years old, and the grantee named in the deed involved in Cumberland Land Co. v. Daniel was not in existence at the time the deed was filed for registration.
These cases, we think, are in principle and effect fair illustrations of the circumstances under which the Supreme Court of the state has (except in decisions which apparently that court has in effect over
We therefore hold that the rule to be deduced from the applicable decisions of the Supreme Court of Tennessee, before commented on, is that the presumption of delivery must (where the competency of the grantee is not questioned) be ascribed to the date of the deed, and, consequently, in the present case the presumption is to be so applied.
The statutes pertinent to the tax sale and taxes in dispute seem to be embraced within the tax act of 1813 and its amendments (1 Tenn. Stat. 1831, pp. 335 to 362), except as repealed by section 20 of Act Feb. 5, 1836, Acts 1835-36, p. 72; also chapter 14, Id. p. 67; also chapter 15, Id. pp. 72 to 78. There is ambiguity touching the meaning of the word “return” as used in the phrase “at the time of the return of such, property or sale thereof,” in section 3 of the Act of 1813 (1 Tenn. Stat. 1831, p. 337). Does this word (re
If the tax lien is to be worked out in the manner suggested by counsel for defendants under sections 4 and 5 of chapter 15 of the act before cited, still the words “due return to the commissioners,” as used in section 5 of chapter 14, Acts 1835-36, supra, could hardly fix the time for the lien to attach, because that return of the taxpayer was designed only to aid the commissioner to make out the tax lists and so could not amount to an assessment of taxes in the sense of creating a lien. Black on Tax Titles (2d Ed.) § 97, p. 117. The fact that the taxpayer’s return was required to embrace all taxable property “owned or possessed oti the 10th day of January last past” obviously could not change the character of his return in the sense that it would operate to create a lien. A tax lien could not have been created except through some direct or indirect act of the lawmaking power itself; and conceding that the lien might have been declared to take effect by relation back to the date (January 10th), as to which the returns of the property holdings of the taxpayers were required to be made, still nothing in the nature of a lien as of January 10th appears to have been created. It would therefore seem to be more reasonable to treat the returns, which the commissioners were required to make to the clerks of the county courts before the March term (showing the name of each taxpayer in alphabetical order, etc. [section 10]), as the first official act at all appropriate to create a tax lien.
The contention of counsel for defendants that neither the act of 1813, nor the other acts mentioned, made any provision for payment of taxes, seems to be misconceived; because in addition to the provision in that regard found in section 15 of the act of 1813 before pointed out, section 3 of chapter 15 of the last act cited makes similar provision for the payment of taxes. It is enough to say, without stating further details, that neither any statutory provision fixing the date on which a tax lien should attach, nor any áct of any tax official that was calculated to create a lien, has been called to our attention that could have imposed a lien as early as the date of last registration of the deed from Rice to Washington. Nor was it open to any taxpayer to pay his taxes for the year 1839 at a time earlier than the last registration; no taxes were ascertained, much less spread, as early as that registration.
The tax commissioner was in 1839 authorized to make out and return tax lists of property as to which the owners had failed to make return; but the commissioner could not make any such return until after February 10th. The fact that the commissioner made the return after that date as regards the land in suit is, we think, fairly in-ferable from the recital in the tax deed that Rice was “the reputed' owner.” It is hard to conceive that Rice made a return of the land in January — a month after he had executed the deed to Washington. Washington had from the 26th of January, appeared to be the registered owner of the land. It is not claimed that the land of a registered owner can be validly taxed and sold in the name of his grantor —a practical stranger to the title. See Anderson v. Post, 38 S. W. 283, 286 (Ch. App. of Tenn., June 13, 1896, affirmed by Supreme Court September 26, 1896); City of Nashville v. Cowan, 10 Lea (Tenn.) 209, 215; Tax Title Cases, 105 Tenn. 245, 252, 253, 58 S. W. 259.
The judgment' below must be reversed and a new trial awarded, with costs.