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Lessee of Hannel v. Smith.

W. R, Morris, for Defendant.

IN BANK Dec. Term,

1846. There were three objections taken to the plaintiff's title, on ---the trial below

First: That the list transmitted by the Auditor of State to the Treasurer of Hamilton County, of forfeited lands, under which the sale was made, was not signed by the Auditor of State, and was not certified by him under the seal of the Auditor of State.

Second: The sale was not made on the second Monday of December, as required by law, but upon a day subsequent.

Third: That the description of the land sold contained in the assessment was void, for uncertainty..

As to the first objection:

The statute requires the auditor to keep a seal, and that all official copies taken from the records or other documents in his office, shall be certified and signed by the auditor. Swan's Stat. 120, sec. 3.

The statute specifically requires the list of forfeited lands for taxes to be made out and certified by the Auditor of State, and requires him to sign the certificate and affix thereto the seal of his office: See Swan's Stat. 927, sec. 92. This last act was passed March 14, 1831. .

By the act of the 15th February, 1842, which was merely amendatory of the act of 1831, the fifth section directs the Auditor of State to transmit the list of forfeited lands to the auditors of the several counties on or before the first Monday of June, 1843, and requires the same and the proceedings in all things to be conducted according to the provisions of the act of 1831: See 40 Ohio Laws, 6, sec. 5. The act of 1842 is silent as to the mode in which the list should be certified, signed and sealed. But this is not material, as the act of 1831 provides how the Auditor of State should sign, seal and certify, and the act of 1842 was not intended to make any change in that particular, or to dispense with the signing by the Auditor of State, or the seal of his office.

Lessee of Hannel v. Smith.

1846.

In Bank. As to the second objection :
Dec. Term, The

The statute of 1831 provides, expressly, that the land forfeited for taxes, &c., shall be exposed for sale by the auditor of the several counties, on the second Monday of December. See Swan's Stat. 928, sec. 4.

The act of 1842 provides, that the lands and lots not sold at the first sale in December, should be continued and offered at the next sale, on the second Monday of December following, without further order from the Auditor of State, under the fifth section of the law of 1831. See 40 Ohio Laws, 6, sec. 5.

Neither of these statutes authorize any sale except on the second Monday of December, and I claim it is a simple question of power, and unless practiced strictly, the act of the county auditor is not valid.. · As to the third objection: It seems to me unanswerable. The description is in every way uncertain and void. The question does not arise, whether the description could be aided by parol proof, for none such is offered. It is simply a question whether the description at bar is sufficient to enable a surveyor to identify and ascertain the lot sold. And the question arises, on reading the description, what thirty feet are intended; on which side of the street will you find them? Are you to obtain thirty feet square, or thirty square feet, or thirty front feet? And of what length or depth is the lot? Where is to be the commencing point, and in what place, town or city is the lot to be located by the surveyor? That the lot of the defendants, thirty feet in front and one hundred deep, in Cincinnati, has been surveyed by order of the purchaser and plaintiff, may be true, but that does not help out the description of the assessment. See 4 Cranch. Rep. 402; 3 Ohio Rep. 232; 2 Ohio Rep. 231; Ibid. 287; 5 Ohio Rep. 458; 4 Pet. Rep. 350. .

Hitchcock, J. The record shows, that this case was submitted to the Court upon an issue in fact, which issue, after

Lessee of Hannel v. Smith.

hearing the evidence, the Court found in favor of the defend- In Bank. ant. There is, it is true, a bill of exceptions in the record, but Dec. Term,

1846. it does not appear from that bill of exceptions, that there was any question of law raised upon the trial; that there was any objection to any part of the testimony, but all was submitted to the Court, the parties waiving a jury. There is nothing to show that the Court made any one of the decisions claimed in the assignment of error as being erroneous, except that the Court rendered judgment for the defendant, instead of rendering judgment for the plaintiff. The ground upon which that judgment was rendered, no where appears. If it was wrong, being either against law or evidence, the course of the plaintiff was plain. He should have moved for a new trial. Under such circumstances, we have uniformly refused to reverse judgments, holding that the finding of the Court upon a matter of fact, could no more be reviewed by writ of error, than could the verdict of a jury.

The case might be left here, but as it has been so elaborately and cogently argued, we are willing to depart from our usual practice, and consider it as if it had come before us on motion for a new trial. But considering it in that light, it is proper to say, that the bill of exceptions, with the exhibits attached, does not disclose all the evidence which was exhibited on the trial. The exhibits, as they are called, are, in reality, but extracts from that evidence. The record books of the auditor of the county were in evidence. This is shown by the bill of exceptions. But the copies or exhibits are merely extracts from those books, or certificates to show what they contain. In truth, some of these documents, as they are now presented, would have been incompetent evidence.

The first question raised by the assignment of errors is, whether, from the testimony before the Court, there was sufficient evidence to show that the Auditor of Hamilton County had power to sell the land in controversy in the way and manner he did.

Lessee of Hannel v. Smith.

Dec. 1

1816.

In Bank. It must be remembered, that this land had been forfeited for

fin, the nonpayment of taxes — whether properly or not, is not the

question — and was intended to be sold as such forfeited land. Now, what was necessary to be done that the county auditor might have power to sell such lands? It is not sufficient, that the lands had been forfeited. A right to sell did not immediately follow upon the forfeiture. The act of March 14, 1831, (Swan's Stat. 927, “to provide for the sale of such lands," makes several provisions upon this subject. The first part of the act has reference to lands which had been previously forfeited. In the third section, the Auditor of State is required to transmit to the several county auditors, lists of lands which had then been forfeited for the nonpayment of taxes in their respective counties, said lists to be certified and signed by the Auditor of State, and to have thereto affixed his seal of office. This having been done, the respective county auditors are required, after having complied with the law as to advertising, &c., to sell the lands in the list contained, unless the taxes shall have been paid, &c. The fifth section of the act has reference to subsequent forfeitures. It requires the Auditor of State, annually, after the year 1831, to enter in a book, provided for that purpose, all the lands which should thereafter become forfeited, and once in two years to make out a list of such forfeited lands and forward the same to the respective county auditors, and these latter are required to proceed and sell the same in the mode prescribed in the law.

It is apparent, from this law, that the authority of a county auditor to sell forfeited land is derived from this list, thus transmitted to him by the Auditor of State. As well might a sheriff, without execution, sell lands to satisfy a judgment, as a county auditor undertake to sell without this list. The act of 14th March, 1842, (40 Ohio Laws, 4,) referred to by plaintiff's counsel, although amendatory to the act of 1931, does not make any change in this respect.

In what manner is this list to be made out? Here, it must be remembered, that there is a difference made in the law be

Lessee of Hannel v. Smith.

1316.

tween delinquent and forfeited lands. Lands which are charged In Bank.

. Dec. Term, with a tax upon the duplicate, and which tax is not paid within the year, are said to be delinquent, and the amount of delinquencies are returned to the Auditor of State, to enable him to make settlement with the county treasurers. The lands, however, are entered upon the duplicate of the next succeeding year, charged with the tax, interest and penalty of the year when delinquent, together with the tax of the current year. If these are not paid within the time limited by law, the land is offered for sale at public auction, and if not sold for want of bidders, is said to be forfeited, and these forfeited lands, or a list of them, are returned to the Auditor of State, who, as we have already seen, under the law of 1831, is bound to record them in a book to be by him kept in his office for that purpose. The lands thus forfeited are not, while in that situation, placed upon the county duplicate for taxation; but at the times required by law, the auditor transmits a list of these lands, or such of them as have not been redeemed, to the respective county auditors, charged with the amount of taxes for the nonpayment of which they were forfeited, together with the taxes which shall have accrued thereafter.

Now, to the question as to the manner in which the list of forfeited land is to be made. The statute itself answers the question. The third section of the act, already referred to, regulating the sale of forfeited lands, provides : “ that the Auditor of State, at the time he transmits the county duplicate for the year 1831 to the several county auditors, shall also transmit to each county auditor a list of the forfeited lands • lying in such county, which list shall set forth the name or names of the person or persons to whom such lands stand charged with taxes, the amount due thereon for each year, in

cluding the year 1831, and for what years, and shall certify " and sign said list and affix thereto the seal of his office." Here we are informed what this list is to contain, with an express provision, that it shall be certified and signed, and verified by the official seal of the officer.

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