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Lessee of Hannel v. Smith.

Dec. Te

In Bank. It seems to be admitted by plaintiff's counsel that this for

9, mality was necessary as to the lands which were forfeited pre1846.

vious to 1831; but it is strongly denied that it was necessary as to any subsequent forfeitures. And this argument is based upon the fact, that it is not expressly enacted that the list of such lands shall be verified by the official signature and seal of the auditor. It is true, that in the 5th section of the act (Swan's Stat. 928) which has reference to land subsequently to be forfeited, although it is provided that the auditor shall, “once in two years, make out a list of such forfeited lands, and forward the same to the several county auditors," it is not expressly said that such list shall be certified, signed and sealed by the auditor. But it is at least reasonable to suppose, that the Legislature having once, in the same act, made this express provision, deemed it unnecessary to repeat the identical words in every clause of the statute where this list of forfeited lands was treated of. At least we shall so understand that body upon this subject, until some reason shall be assigned why a list of lands, forfeited before 1831, should be thus certified, signed and sealed, while similar lists of lands forfeited subsequently to that period, should not require such verification. The same remark will apply to the act of 1842, which is merely amendatory to the act of 1831.

But if neither of these acts had required this list to be certified, signed and sealed by the Auditor of State, we apprehend that it must have been so done, before a county auditor would be authorized to sell. The act of January 31, 1831, « prescribing the duties of the Auditor, Treasurer, and Secretary of State,” in the 3d section prescribes, “that the auditor

shall keep a seal, with the device of, “The SEAL FOR THE * Auditor of Ohio, and all official copies taken from the

records, or other documents in his office, shall be under said seal, and shall be certified and signed by the auditor.” To provide against contingencies, it is enacted in the 22d section of the same act, “that the Auditor of State may appoint a

chief clerk, whose appointment shall be evidenced by a cer"tificate thereof, under the official seal of the auditor, and shall

Lessee of Hannel v. Smith.

continue during the pleasure of the auditor.” And in the In Bank. 24th section, “that in case of the absence or inability of the

Dec. Term,

1816. auditor, the chief clerk shall do and perform the several duties required by the auditor.”

It is said, however, by counsel, that these provisions of the law do not bear upon this case, because this list is merely a list of forfeited lands, while only copies of records and other documents in his office are required to be under the hand and official seal of the auditor. But how is this list made out? As we have already seen, it is the duty of the auditor to keep a book, in which are recorded all forfeited lands; and if such lands are not redeemed, as they may be, he copies from this book a list of those remaining, which is called the list of forfeited lands. It is literally a copy from the records in his office, and as such, must be verified in the manner pointed out by the law.

Now the question arises, whether there was evidence before the Court on the trial of the case under consideration, that previous to the sale of the land in controversy, such list as the law requires, had been transmitted to the auditor of Hamilton county; or, more properly speaking, was there evidence to satisfy the Court that no such list, verified as the law directs, had been transmitted. The plaintiff having introduced his deed, which was admitted as prima facie evidence of title, the burden of proof was thrown upon the defendant to show that the land was sold without authority of law. For this purpose the book of records of the auditor's office of Hamilton county was produced. In that book was found the letter marked as copy B in the bill of exceptions. It is as follows:


Columbus, On10, June 5, 1843. “ Auditor of Hamilton County :

“ You will carefully examine the foregoing list, and strike from it all such lands as you may know to be erroneously forfeited, taking care that none escape the duplicate of taxation. You will then proceed to advertise and sell the remainder, according to the original act for the sale of forfeited lands, and the amendatory act passed February 15, 1842, &c.

“ JOHN BROUGH, Auditor of State.

" By J. B. Tuomas."

Lessee of Hannel v. Smith.

Dec. Term,


In Bank. It is apparent from this document, that it was annexed to a het, list called a list of forfeited land, but it was not such a verifica

tion of that list as the law required. It was not even signed by the auditor, but by J. B. Thomas. And who is J. B. Thomas? Plaintiff's counsel answer, the deputy of the Auditor of State ; and the Auditor of State signed by his deputy. By what authority? It is replied, by the authority which every public officer has to act by deputy. I know that some public officers may act by deputy, such as sheriffs, clerks, &c.; but I have yet to learn that the Auditor of State of Ohio can act by any other authority than the one prescribed by law: that is, the chief clerk in his office. Thomas, however, does not sign as deputy, nor as chief clerk. This instrument is not only without the signature of the auditor, but it is not verified by his official seal, nor is it therein certified that the list to which it is attached, is correct. It is defective, and would no more authorize the county auditor to sell the land contained in the list, than a letter written by a clerk of a court, and directed to a sheriff, informing him that a judgment had been rendered in a certain case, would authorize that sheriff to levy upon and sell the lands of a judgment debtor.

But it is said that it does not appear from the record but that there might have been the requisite certificate. The records of the auditor of the county were before the Court. The question agitated was, whether the list of forfeited lands was properly authenticated. It is strange, indeed, that if there was any proper certificate, it was not at that time discovered by the astute counsel of the plaintiff. Strange that it was not made part of the bill of exceptions. There was not in fact any such certificate. The letter before recited was the only document contained in the record, which was claimed, in connection with the list to which it was attached, as being sufficient to authorize the county auditor to sell. The Court, hearing the case upon the circuit, thought otherwise, and held that the authority was not sufficient. In so deciding, this Court are of opinion there was no error..

Lessee of Hannel v. Smith.

The next error complained of is, that the Court decided that Ix BANK.

Dec. Term, the description of the lot upon the duplicate was defective or

1816. insufficient.

The description is as follows: “ Thomas Smith's heirs; 30 "feet b. Chesnut and Eliz. sts.; value, $210; tax for 1811, $3.25.”

This was the description of the land upon the duplicate of 1841, the year in which the land was returned delinquent. It was entered upon the duplicate of 1842 by a similar description. The taxes not being paid, the land was offered for sale, and not being sold, was returned to the Auditor of State as forfeited.

It is admitted by plaintiff's counsel, that, according to numerous decisions of this Court, heretofore made upon this subject, this description is defective; but it is claimed that these decisions are all wrong, and that this Court have been led into error by following the decisions of the Supreme Court of the United States, in the case of Stead's Executors v. Course ; Cranch's Rep. 412; and the opinion of Judge Marshall, in that case, has been commented upon with no little severity. It may be that counsel is right, and that this Court, and the Supreme Court of the United States, are all wrong. But we generally feel that we are pretty well fortified if our decisions are sustained by the authority of the highest court in the Union.

Whether, as a matter of policy, the strictness with which tax sales have been scrutinized, has been most conducive to the public good, is perhaps questionable. But if this Court has been too rigid in this respect, the Legislature can easily apply a proper remedy; and many of the arguments of plaintiff's counsel would be much more applicable unto a legislative body than to a judicial tribunal. Where a principle of law has been established by a long course of judicial decisions, it should not be changed for light and trivial reasons. It does not so much matter what the law is, as that it should be well understood. A change of the laws by the Legislature can do but little harm, as their acts are only prospective in their operation; but a

Lessee of Hannel v. Smith.

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Ix Bank. change of decisions by this Court interferes with previously

", acquired rights. Our decisions, in this respect, have a retro spective operation.

But, aside from the decisions of this Court, is the description of the land, as entered upon the duplicate, sufficient? The law requires a “pertinent description of the property so as

to identify the same.” The description of this land is as follows: “ Thomas Smith's heirs ; 30 feet, between Chesnut and · Elizabeth streets; value,” &c. The number of the lot is not given. It is not stated whether it is an entire lot, or a part of the lot. It does not appear whether it is thirty feet front or thirty feet square. And if thirty feet front, it is not stated upon what street it fronts. There is, in fact, nothing in the description by which the land can be identified. It is said, however, that it has been identified by a surveyor; and so it appears from the deed given in evidence. The deed purports to convey to the lessor of the plaintiff, “ the following lot in · Cincinnati, as per survey, beginning on the west side of Western Row, fifty-five feet south of Chesnut street; thence, southwardly with Western Row, thirty feet for the front of the lot, and extending back one hundred feet, more or less." This description is well enough; but it is entirely different from that in the duplicate. It shows, however, that there was more than thirty feet front upon Western Row, between Chesnut and Elizabeth streets, and I know of no law which would justify the Auditor in conveying this particular thirty feet. In fact, I see no reason why a surveyor should have been called at all. The land sold did not purport to be a part of a lot or tract, but an entire lot, and it was all sold; and, such being the circumstances, should have been conveyed substantially as described. The mode of rendering a thing certain which was before uncertain, adopted in this case, we do not well comprehend. That mode was to examine the records of the county; and if, from those records, it was found that Thomas Smith had any land in Cincinnati, to consider that as the land sold, regardless of the description in the duplicate.

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