The interference of courts of equity in restraint of waste was originally confined to cases founded in priority of title; but at present, the jurisdiction has been enlarged to reach cases of adverse claims and rights not founded in priority; as, for instance, to cases of trespass, attended with irreparable mischief. [2 Story’s Eq. 200.] The interposition by way of injunction in cases of waste, may be referred to the broadest principles of social justice. It is exerted where the remedy at law is imperfect, or is wholly denied ; where the nature of the injury is such, that a preventive remedy is indispensable, and should be permanent. [Ib.j Even in cases of tenants in common, courts of equity will interfere where the party committing the waste is insolvent; or where the waste is destructive of the estate, and not within the usual legitimate exercise of the right of enjoying it. [Id. 199.] In some cases, the jurisdiction is maintained in order to prevent multiplicity of suits. [1 Story’s Eq. 82,
In Livingston v. Livingston, 6 Johns. Ch. Rep. 497, it was said, that “Lord Eldon suggested the propriety, of extending the injunction to trespasses as well as waste, on the ground of preventing irreparable mischief, and the destruction of the substance of the inheritance. The distinction on this point, which was carefully kept up by Lord Hardwiclce, was shaken by Lord Thurlow, in Flamany’s case respecting a mine, and seems to be almost broken down and disregarded by Lord Eldon. This protection is now granted in the case of timber, coals, lead ore, quarries, &c.; and £the present established course,’ as he observed in Thomas v. Oakley, 18 Ves. 184, ‘ was to sustain the bill for the purpose of an injunction, connecting it with the account in both cases, and not to put the plaintiff to come here for an injunction, and to go to law for damages.” So in Field v. Beaumont, 1 Swa. Rep. 208, the Lord Chancellor remarked that his “court was now in the habit of granting injunctions in cases of trespass, as well as of waste.” But is said not to be the general rule that an injunction will lie in a marked case of trespass, where there is no legal remedy for the intrusion. There must be something particular in the case, so as to bring the injury under the head of quieting the possession, or to make out a case of irreparable mischief, or where the value of the inheritance is put in jeopardy. [1 Madd. Ch. Rep. 150.] Where this appears, the jurisdiction of equity is defensible. [6 Joh. Ch. Rep. 497; 1 Paige’s Rep. 99; 6 Ves. Rep. 147; 7 Id. 305; 10 Id. 290; 15 Id. 138; 16 Id. 128; 17 Id. 110, 128, 281.]
In Hart & Hoyt v. Mayor, &c. of Albany, 3 Paige’s Rep. 213, the chancellor observed that the cases in which his court had interfered to prevent a mere trespass, have been those in which the complainant had been in the previous undisturbed enjoyment of the property under claim of right, or where from the irresponsibility of the defendant, or otherwise, the
In Pettit v. Shepherd, 5 Paige’s Rep. 501, it was held that an injunction will be granted at the suit of the true owner of land to restrain the sale, of it, under .an execution against the lands and tenements of a third person. “ The jurisdiction of this court,” .said the chancellor, “ to set aside deeds and other legal instruments, which are a cloud upon the title to real estate, and to order them to be delivered up and canceled, appears to be now fully established. [See Ward v. Ward, 2 Hayw. Rep. 226; Leigh v. Everhart’s Ex’rs, 4 Mon. Rep. 380; Hamilton v. Cummins, 1 Johns. Ch. Rep. 517; Apthorp v. Comstock, 2 Paige’s Rep. 482; Grover v. Hugell, 3 Russ. Ch. Rep. 432.] And if a court of chancery would, have jurisdiction to set aside the sheriff’s deed which might be given on a sale, and to order the same to be delivered up and canceled, as forming an improper cloud upon the complainant’s title to his fprm, it seems to follow as a necessary
By a comparison of the allegations of the bill with the law as we have stated it, we think it perfectly clear, that the bill states a case proper for equitable interposition. True, it does not charge the defendant, Lyon, with the actual commission of waste, but it affirms, that trespasses and waste are threatened, that preparations are being made for their commission, and that by the acts of Lyon, and others acting avowedly under his authority, the complainants are disturbed and are likely to be still more seriously interrupted in the enjoyment of their property. That the acts charged to have been committed and threatened would most probably produce such a result as the complainants apprehend, we think cannot be seriously questioned. This being the case, and Lyon being insolvent, the preventive interference of chancery may be sustained upon the ground that the injury to the complainants’ property would be otherwise irreparable. To authorize an injunction to issue in such case, it is not necessary that the acts threatened should have been committed— if the party insists upon his right to do them, and especially if he makes advances towards their commission, it is quite sufficient. [2 Atk. R. 183; Casey v. Holmes, Bott & Earle, 10 Ala. Rep. 776.]
. The validity of the deed from Huggins as collector of the taxes for Mobile county, has not been drawn in question, for any defects apparent on its face, and it may therefore be conceded, that it is prima facie valid, if its recitals are sustained. Upon this hypothesis it may be assumed, that if it is not sufficient to divest the complainants’ interest in the property in question, it at least throws a cloud over their title — is calculated to impair the market value of the estate, and will prevent a sale at its fair value. Under such circumstances, no
We are now brought to consider the validity of the sale under which Lyon claims, and the deed consequent thereon. By the act of 1815, in connection with that of 1821, it is enacted, that all lists of taxes shall be considered as having the force and effect of an execution ; and it shall be lawful for all assessors and collectors of taxes, from and after the first day of September, in each year, to proceed to irnake distress and sale of the goods and chattels, lands and tenements of all persons in arrear for taxes. Where the delinquent has no goods and chattels within the county, then his lands and tenements within the same, or so much thereof as will be sufficient to pay the amount of taxes due from him, together with costs and charges, may be sold by the collector; “ Provided, that the collector shall have given in the nearest newspaper published in this state, in the case of residents within the , same, at least three months notice, and in the case of non-residents, at least six months notice of the time and place of sale.” “ Which notice shall contain a particular description of the land for sale; on what water course it is, and by what lands the same is bounded; and to whom the same was granted, or by whom the same is now owned or claimed.” “ There shall not be sold in one lot, more than three hundred and twenty acres of land; but if one lot shall not sell. for the amount of taxes due from the delinquent, together with all costs and charges that shall have accrued thereon, the collector shall sell as many lots, or parts of lots, as shall raise the full amount due ; in no case shall the collector sell any more land than shall be sufficient to raise such sum as shall be due.
The same statute directs that every collector of taxes who shall sell any real estate to satisfy any tax,imposed by law
In Williams v. Peyton’s lessee, 4 Wheat. Rep. 77, it was said that the authority conferred upon a collector to sell lands for the non-payment of the direct tax, “ is a naked power,
It is easy for the purchaser, said the court, to show that the collector has posted up the notifications as required by the statute, but very difficult to show that he has not. He may readily prove that a personal demand was made on the person liable for the tax, “ but the negative in many cases would not admit of proof. No greater hardship is imposed on the purchaser to require him to prove the publication in a gazette, than to require him to prove that a naked power of attorney, in a case in which his deed has been executed by an attorney, was really given by the principal. “ But to require from the original proprietor proof that these acts were not performed by the collector, would be to impose on him a task always difficult, and sometimes impossible to be performed.” [See also, 4 Cranch’s Rep. 403 ; 9 Id. 64; 1 Scam. R. 335; 1 Bibb’s R. 295; 5 Mass. Rep. 403; 4 Dev. & Bat. R. 363.] A purchaseer of lands which have been sold for the non-payment of taxes cannot defend his possesion by the production of the collector’s deed, and proof of its execution, but he must also show that the lands were listed; that taxes were due and unpaid, and that the lands were regularly advertised for sale. ’ “ In deciding on tax titles, great strictness has always been observed, and less latitude given than in proceedings on judgment and execution. A collector who sells lands for taxes, must act in conformity with the law from which he derives his power, and the purchaser is bound to inquire whether he has done so, or not. He buys at his peril, and cannot sustain his title, without showing the authority of the collector, and the regularity of the proceedings. In these cases the maxim caveat emptor applies.” [3 Ohio Rep. 232; see also, 2 Ohio, 378; 3 Yeates’ Rep. 284; 2 Id. 100; 13 Sergt. & R. Rep. 208; 4 Dev. & Bat. Rep. 386; 5 Wheat.
In an ex parte proceeding, as a sale of land for taxes, under a special authority, great strictness is required. To divest an individual of his property .against his consent, every substantial requisite of the law must be complied with, No presumption can be raised in behalf of a collector who sells real estate for taxes, to cure any radical defect in his proceedings ; and the proof of regularity devolves upon the person who claims under the collector’s sale. [4 Pet. R. 349.] To the same eifect is Avery v. Rose, 4 Dev. Rep, 549, in which it was also held, that the collector’s deed must be made at the time directed by the statute. In the Lessee of Watt v. Gilmore, 2 Yeates’ Rep. 330, lands were assessed and sold for the non-payment of taxes, as the property of A. G. and J. G., but were advertised as the property of C. G. and company: Held, that the variance between the advertisement, assessment and deed, was fatal to the sale and operation of the deed. So it has been decided, that under the eighth section of the act of 1812, to amend the act for the incorporation of the city of Washington, a sale of unimproved squares, or lots in the city, for the payment of taxes is illegal, unless such squares and lots have been assessed to the true and lawful proprietor thereof; and the advertisement of sale must contain a particular statement of the amount of taxes due on each lot separately. [8 Wheat. Rep. 681.] And if land is assessed in the name of A. when in fact it belonged to B., a sale for the non-payment of taxes will not, though a deed has been executed, and legal forms have in other respects been adhered to, convey a title to the purchaser. [1 Bibb’s Rep. 295.] In fact it is indispensable to the regularity.of a sale, in such case, that the assessment of the tax should have been made strictly in conformity to law. [1 Tyler’s Rep. 305; 14 Mass. Rep. 177; 1 Pick. Rep. 482.] Where the statute requires the notice shall be given to the occupant, or proprietor of the land, previous to the sale for the non-payment of the tax, unless such notice is given, the deed of the collector passes no title to the purchaser. [7 Wend. R. 148; 15 Id. 348; 16 Id. 550.]
A statute of New York required a tax list to be made out, “ containing the names of all the taxable inhabitants residing in the district at the time of making out the list, and the amount of tax payable by each inhabitant, set opposite his nameand further directed, that a warrant issue, which “ shall command the collector to collect from every person in such tax list or rate bill named, the sum therein set opposite to his name.”' Held, that where a farm is owned, and actually possessed by the widow and heirs of a person deceased, the designation of such owners in a tax list, and warrant for the collection of the tax, as “ the widow and heirs of A. B. deceased, is a sufficient compliance with the directions of the statute to justify the collector in executing the warrant. [10 Wend. Rep. 346.] And in the Lessee of Massie’s Heirs v. Long and others, 1 and 2 Ohio Rep. 412, it was held that the assessment of a tax upon a “part of a lot, or one acre of a lot,” without quantity or location, in the one case, or without location in the other, is too vague and indefinite to authorize a sale of any part, or in any place. It has been decided under the tax laws of Illinois, that a deed to the purchaser of land sold for taxes, must show that the land was sold for the taxes of a particular year, and if it is ambiguous in this respect, it cannot be explained by parol testimony. [1 Gilm. Rep. 26.]
The earlier legislation of Illinois, in respect to the sale of
We might, perhaps, have saved ourselves the labor of thus multiplying citations on this branch of the case, by merely referring to a decision of our own, in which it was held, that to sustain a sale of real estate for the non-payment of taxes by the marshall and collector of the city of Wetumpka, the purchaser must show that every pre-requisite to the regularity of such sale had been strictly complied with. [5 Ala. R. 433.] But as the opinion, in that case, though clearly and satisfactorily reasoned, did not go into an elaborate examination of the question, we have thought altogether proper on the present occasion, to fortify the conclusion there expressed. It is important to the State, as well as to individuals, that the law upon this point should be understood, and this must be our apology for having thus extended this opinion.
Our statutes do not declare that a sale and conveyance, ■such as we are considering, shall operate proprio vigore, it merely provides that the collector’s “ deed shall be good and effectual, both in law and equity.” By this we understand, that it shall pass the title to the vendee, if the sale was made
The notice we have taken of our statutes, and the adjudications upon kindred enactments elsewhere, very clearly indicate that the proceedings of the collector, Huggins, under whose deed Lyon claims, were eminently irregular. The assessment does not particularize the land, by stating what portion of the Orange Grove tract was assessed. It could not have been ascertained, (if at all,) without reference to deeds and writings, as well as oral testimony, to which access could most probably be obtained only by time and industry. It does not appear whether the assessment was made in the ordinary mode by the proprietors of the estate, or by the collector, upon his neglect or refusal to give it in; nor is it shown that the collector delivered to the proper persons a written statement of the tax assessed. It may be well questioned, whether it is proved that the persons liable to pay the tax had not sufficient property in Mobile county that could be sold for its satisfaction. Is it certain that the lands were assessed to the proper persons ? It is obvious from the proof, that the greater part of the sum assessed was paid by the real proprietors of the property, or their agents, even previous to its having been advertised for sale.
Again: The advertisement by the collector of the time and place of sale, is as general as the assessment, and proposed to sell “ thebalace of the Orange Grove tract remaining unsold,” to pay the entire sum assessed, without noticing the payment of any part of it; nor can the land to which it refers be identified, and located, otherwise than by reference to extraneous written, and perhaps verbal evidence. And to this it may be added, that it not only does not appear that the sale was advertised for three months, but it was proved
We need not consider any other question discussed in this case, as the result cannot be changed by any conclusion we might attain in respect to them. The consequence is, that the chanceller rightly perpetuated the injunction, and set aside the sale and conveyance upon which the defendant, Lyon, rested his claim — the decree is therefore affirmed.