terested freeholders, the extent was void. By the statute these qualifications are essential and indispensable, and the court would not admit extrinsic proof that they did exist, for the reason that it was held they should appear by the return of the sheriff. (Williams v. Amory, 14 Mass. R. 20.)

In a much later case, the supreme judicial court decided that the officer who levies an execution on real estate, is not authorized by the revised statutes of the state to appoint an appraiser for the debtor, where the debtor is not a resident of the state, but only where he neglects to appoint one; and where the officer appoints an appraiser for the debtor, the reason thereof must appear in the return, either in the words specified in the statute, or in equivalent language; otherwise the levy will be invalid. The court further held that where land, which has been conveyed fraudulently as against creditors, is levied upon by a creditor of the grantor, and such creditor thereupon brings a writ of entry against the grantee to recover possession of the land, the grantee may defend against the action, by showing that the levy is void for some defect therein. (Leonard v. Bryant, 2 Cush. R. 32.) And there are many cases in the reports of the Massachusetts courts, to show that the court had uniformly adhered to the opinion, that every thing made necessary by the statute to pass the property, either in land or chattels, must appear by the return of the officer to have been done. (Allen v. Thayer, 17 Mass. R. 299. 'Wellington v. Gale, 13 ib. 483. Davis v. Maynard, 9 ib. 242. Perry v. Dover, 12 Pick. R. 211.)

There is a great diversity of practice in the several states in the method of levying execution upon real estate, but it is not consonant with a work like this to give any thing more than some general principles which are supposed to have a somewhat general application. Usually, land cannot be taken but in default of personal estate, to satisfy the execution. Such is the law in Delaware, Illinois, Indiana, Kentucky, Michigan, Mississippi, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, Tennessee, Texas, and Oregon, and probably in most of the other western states. In Connecticut and Vermont, the real estate of the judgment debtor may be taken to satisfy the execution, unless he shall tender sufficient personal property to satisfy the same. And there are restrictions upon the right to levy the execution upon the real estate of the debtor, in nearly all of the states, which

will be ascertained by reference to the statutes of the several states upon the subject. In some of the states the sale of the land upon the execution is absolute, while in others the debtor has a specified period in which to redeem; and in all cases it should be made to appear by the claimant in the action to recover the possession of the land, that the conditions of the statute have been answered; and this must appear by the sheriff's return to the execution, or by his deed executed in conformity with the statute requiring it; always excepting those facts which are presumed in favor of a public officer, and excepting those provisions of a statute which are directory to the officer merely. A very intelligible synopsis of the statutes of the several states in respect to applying the lands of debtors in satisfaction of their debts, by the forms of law, may be found in Governor Washburne's valuable treatise on the American Law of Real Property, third edition. (2 Wash. Real Prop. 27, note.)

It may be added that where the statute provides for a conveyance by the sheriff to perfect the sale to the purchaser under an execution, the sheriff's deed, executed after the time to redeem expires, relates back to the time of the sale. (Wright v. Douglass, 2 N. Y. R. 373.)

In respect to the proof of title in cases of sales of lands for non-payment of taxes assessed thereon, it may be remarked that the power of taxation is inherent in every state and is essential to the maintenance of government; but it is universally exercised in conformity to express provisions of statute. The power of legislation and consequently of taxation operates on all the persons and property belonging to the body politic. This is an orignal principle, which has its foundation in society itself. It is granted by all, for the benefit of all. It resides in government as a part of itself, and need not be reserved where property of any description, or the right to use it in any manner, is granted to individuals or corporate bodies. However absolute the right of an individual may be, it is still in the nature of that right, that it must bear a portion of the public burdens, and that portion must be determined by the legislature. But it must be borne in mind that this power to sell lands for the payment of taxes is a naked one, and not coupled with any interest in the land in the officer who effects it, and the power is always exercised under a special authority, and the proceedings are ex parte. In these cases, there

fore, the principle is well settled, that great strictness is required. To divest an individual of his property, against his consent, every substantial requisite of the law must be shown to have been complied with. No presumption can be raised in behalf of the officer who sells real estate for taxes, to cover any radical defect in his proceeding; and the proof of regularity in the procedure devolves upon the person who claims under the officer's sale. In all cases where a naked power is given by law to an officer or other person, it must be strictly pursued, especially if by such proceedings the estate or rights of others may be forfeited or lost, and it devolves on him who claims under exercise of such power to show that it was in all respects exactly pursued. In conformity with this doctrine, where lands are sold by an officer for non-payment of taxes it is incumbent on the purchaser to show that all the steps have been regularly taken which the law requires. Every statute authority in derogation of the common law, to divest the title of one and transfer it to another, must be strictly pursued or the title will not pass; and unless the return of the officer who makes the sale, or the conveyance that is given to the purchaser by the officer, is made evidence of the regularity of the proceedings, the fact that they were regular must be proved, and the onus rests on the purchaser. He must show, step by step, that every thing has been done which the statute makes essential to the due execution of the power. It matters not that it may be difficult for the purchaser to comply with such a rule. It is his business to collect and preserve all the facts and muniments upon which the validity of his title depends. It has been accordingly decided that where lands have been sold for the non-payment of a direct tax imposed by an act of congress, the marshal's deed is not prima facie evidence that the prerequisites required by law, had in fact been complied with. (Williams v. Peyton's Lessee, 4 Wheat. R. 77.) And in a still earlier case decided by the supreme court of the United States, it was held that a vendee at a collector's sale for taxes must prove the authority to sell, that the collector must act in conformity with the law, and the purchaser is bound to inquire whether he had so acted. Marshall, C. J., says: "It is true that full evidence of every minute circumstance ought not, especially at a distant day, to be required. From the establishment of some facts it is possible others may be presumed, and less than positive testimony may establish facts. * *

*

But it is incumbent on the vendee to prove the authority to sell." (Stead's Executor v. Course, 4 Cranch's R. 403.) And in another early case in the same court, the action was ejectment, brought against the tenant in possession, claiming title under a tax sale by virtue of the act of congress in 1798, imposing a direct tax. The defendant produced his deed from the collector, and also the tax list, and the general list of lands in the district, showing the assessment of the tax upon the premises, and the advertisement of sale, but did not prove that the collector had caused a copy of the list of property, with a statement of the amount of the tax, and a notification to pay the same, to be published for sixty days in four gazettes of the state, pursuant to the eleventh section of the act; and the circuit judge charged the jury that the sale was void, and the judgment was affirmed upon error. (Parker v. Beebe's Lessee, 9 Cranch's R. 64.) So also it was held by the same distinguished court, that under the laws of Tennessee, where lands are sold by a summary proceeding for the payment of taxes, it is essential to the validity of the sale and the deed made thereon, that every fact necessary to give the court jurisdiction. should appear upon the record, and further that the execution by a public officer of a power to sell lands for the non-payment of taxes must be in strict pursuance of law under which it is made, or no title is conveyed; and that it is essential to the validity of a sale of land for taxes under the laws of Tennessee, that it shall appear on the record of the court by which the order of sale is made, that the sheriff had returned there were no goods or chattels of the delinquent proprietor out of which the taxes could be made; and that the publications which are required by law to be made subsequent to the sheriff's return, and previous to the order of sale, are indispensable preliminaries to a valid order of sale; the court laying down the rule that in summary proceedings, where the court exercises an extraordinary power under a special statute, which prescribes its course, that course ought to be strictly pursued, and the facts which give jurisdiction ought to appear on the face of the record; otherwise the proceedings are not merely voidable, but absolutely void, as being coram non judice. (M'Clung v. Ross, 5 Wheat. R. 116. Thatcher v. Powell, 6 ib. 119.)

In accordance with the general rule in such cases, it was repeatedly held, in cases arising under the tax laws of the state of New

York, prior to the passage of the act making the comptroller's deed of lands sold by him for taxes presumptive evidence that the sale and all proceedings prior thereto, from and including the assessment of the land, etc., were regular, that it was incumbent upon the grantee of the comptroller in such case to prove all the facts necessary to give the comptroller jurisdiction to execute such a conveyance, including the due assessment of the land, the return of the collector that the taxes remained unpaid, etc. (Hickox v. Tallman, 38 Barb. R. 608. Varick v. Tallman, 2 ib. 113. Tallman v. White, 2 N. Y. R. 66. Beekman v. Bigham, 5 ib. 366.)

But it is not necessary to pursue the discussion further. The authorities referred to will suffice to show, that, in order to make a good tax title, the party claiming under it must show the authority by which the sale was made, and all of the proceedings are to be construed strictly; and, except in those cases where the principle of the common law is modified by statute, the proceedings required by the statute must all be proved. (And vide Jackson v. Shepard, 7 Cow. R. 88. Weyand v. Tipton, 5 Serg. & Rawle's R. 332. Erwin v. Helme, 13 ib. 151. Ballance v. Forsyth, 13 Howard's U. S. R. 23. Gaines v. Stiles, 14 Pet. R. 322. Holt v. Hemphill, 3 Ohio R. 232. Tolman v. Emerson, 4 Pick. R. 162. Alvord v. Collier, 20 ib. 418. Sutton v. Calhoun, 14 La. An. R. 209. Harrington v. Worcester, 6 Allen's R. 576. Abell v. Cross, 17 Iowa R. 176. Conway v. Cable, 37 Ill. R. 88.)

The guardian in socage of an infant, or a testamentary or other guardian of an infant having the usual powers by statute of a guardian in socage, may maintain an action of ejectment against any person entering upon the lands of his ward without right. This is held to be so for the reason that a guardian in socage has the legal custody of the land of the infant, and is entitled to the profits for his own benefit. He is in possession of such lands by right, and may, therefore, of course, maintain the action of ejectment against any person entering upon him without right. But the abolition of all tenures in this country has destroyed guardianship in socage as recognized at common law; but guardians for infants are appointed under the policy of all the states, who possess the same general powers in respect to the lands of their wards as are conferred upon the guardian in socage at common law. (Vide Holmes v. Seeley, 17 Wend. R. 75.)