66 Tenn. 486 | Tenn. | 1874
delivered the opinion of the court.
In May, 1867, the defendants in error brought their action of ejectment in the Circuit Court of Dyer county against Robert Espy and others, tenants of plaintiff) in error, Sampson, and Sampson was admitted defendant in the room and stead of said tenants, and pleaded not guilty.
The plaintiffs below were the heirs at law of G. W. L. Marr, deceased, and it was admitted by the defendant on the trial below that G. W. Gibbs had a good title in fee to the land sued for, and that both parties claimed title under said Gibbs.
The plaintiffs below claimed their title upon an alleged conveyance of 25th January, 1848, to their ancestor, G. W. L. Marr, deceased, by descent from him.
The verdict and judgment were in favor of plaintiffs below, and the defendant has appealed in error to this court.
The record shows that the court charged the jury, but the charge does not appear therein, and we have to presume that the instructions given by the court were in all respects correct.
Two questions arise, which have been well argued, and upon which the rights of the parties are to be determined.
1. The validity of the tax sale, which defendants insist divested plaintiffs of title to the land.
The effect of this tax sale depends upon the construction of the act of 1844, ch. 92, Nich. Sup., 259, which provides, sec. 1, “that in all cases of sales for land hereafter made for public taxes, under the provisions of the laws now in force, it shall be sufficient, to make such sale valid and communicate good title to the purchaser, that the land so sold lies in the county in which it has been reported for non-payment of taxes thereon; that it has been duly reported; that an order of sale has been awarded, and that the sale of said land was duly advertised; to establish which facts the sheriff's deed reciting their existence shall be prima facie evidence, and all judgments or orders of
The 2d section provides that taxes and costs shall be a lien upon the land, and the sale shall be valid, whether it is or is not sold in the name of the true owner, provided the land lies in the county, and is sufficiently described; and it shall not be necessary to state the number of the grant or entry.
The 3d section provides that the sheriffs, besides stating that the land lies in the county, shall state the civil district or districts in which the land lies, to whom granted, or in whose name entered, and the number of acres, as near as may be, which shall be a sufficient description; such sales shall be good and valid if the foregoing requisites be substantially complied with, and the number of the range, section, and surveyor’s district be given, in such parts of the State as have been sectionized, and the description contained in the sheriff’s report, shall be given in the advertisement.
It has been held by this court, in construing the act under consideration, that that act makes the judgment and order of sale, and all previous proceedings, only conclusive when the taxes are not shown to have been paid; but does not preclude any inquiry into the regularity of the advertisement or sale, or other proceedings, after the judgment and order of sale: 4 Sneed, 472.
The case above cited was reversed because the
The jurisdiction of the Circuit Court to sell lands for taxes is purely statutory, and whatever is required to be done by statute, to give validity to such sales, must be done, otherwise they can communicate no title to the purchasers.
The statute, sec. 1, makes the recitals in the sheriff's deed 'prima facie evidence of the existence of certain’ facts, as that the land has been duly reported, and that the sale of said land was duly advertised; and the 3d section requires that the description given in the sheriff's report shall be contained in the advertisement. Sec. 3 requires that the sheriffs report and advertisement shall show the civil district or districts in which the land lies; to whom it was granted, or in whose name entered; the number of acres, as near as may be; and the number of the range, section, and surveyor’s district.
The sheriff’s deed to Parker, the purchaser at the tax sale, executed by ¥m. A. Dawson, sheriff at the time (1852), recites that Z. B. Phillips then reported to the Circuit Court of Dyer county, on 2d Monday of February, 1849, listed for the taxes of 1848 by the revenue commissioners of the 4th and 12th civil district. One tract of 3,100 acres listed in the name of George W. Gibbs, etc., in the ninth range, and second and third sections, and judgment having been rendered against said land for $23.93f- taxes, and charges, and costs, an order of sale was issued, and
The description in the advertisement is as follows:
George W. Gibbs, one tract of 3,100 acres, district No. 11 and 12, 13th surveyor’s district, range -, section-, being part of Martin Armstrong’s heirs, 6,000 acres survey, grant No. 164, for 5,000 acres, being listed in the name of Martin Armstrong’s heirs for the taxes, and being lot No. 5 in the division of said grant, valued at $6,875, tax $19.98§, sheriff’s, clerk’s, and printer’s fee $4.
It will be observed that the description given in the sheriff’s deed of the land as reported, advertised, and sold by the sheriff are materially different in several particulars from that given in the advertisement.
In the deed the land is said to have been reported as listed in the name of Geo. W. Gibbs.
In the advertisement it is said to be Geo. W. Gibbs, 3,100 acres, listed in the name of Martin Armstrong’s heirs.
In the deed it is recited that it was reported by the revenue commissioners of the 4th and 12th civil district, and is in the 9th range, and 2d and 3d sections.
In the advertisement the- land is described as lying in districts Nos. 11 and 12, in the 13th surveyor’s district, range -, section -.
These comparisons of the recitals in the deed and those of the advertisement, without mentioning others referred to in the argument, are sufficient to show that
The next question is as to the admissibility of a copy of the deed from Gibbs to Marr, over the objection of the defendant.
The doctrine is well, and has been long established, that a copy of a deed or other instrument, the original of which the party offering the copy is presumed to have in his possession, or under his control, is not admissible in evidence without some evidence of the loss of the original, or of the inability of the party to produce it: 5 Hum., 370; Ibid, 345.
The plaintiffs below were the heirs at law of the deceased, G. W. L. Marr, some of them his adult children, and are presumed to have control of his title papers, at least of the deed of conveyance by Marr to him. If the fact were not so, it could have been easily shown by the affidavit of plaintiffs, or some of them, or by their attorney or agent. In such a case the court would “ lend an easy ear to proof of loss of a registered instrument,” or that it was not in the possession of plaintiffs, or under their control, in order to allow the introduction of a copy duly certified: 2 Tenn., 261.
The admission of the copy, without accounting for the original, was error.
But as we can see from the record that the de