Opinion
(June Term, 1834.)
The requisition of the act of 1798 (Rev., ch. 492) amending the revenue laws, as respects the land tax, must be strictly complied with by the sheriff, or the estate of the owner is not divested, and where land was, under the fourth section of the act, stricken off to the Governor, and the sheriff, instead of executing his deed at the County Court succeeding the sale, as the act requires, did it at a subsequent term, the deed is inoperative.
EJECTMENT, which was submitted to Seawell, J., at BURKE, on the Spring circuit of 1833, upon the following case agreed:
The case was argued at a former term by Nash for (551) the defendant, and by Badger for the plaintiff, and held under advisement until the present term.
The land described in the declaration was granted in the year 1796 to one William Cathcart. On 19 November, 1814, the taxes being unpaid, it was sold by the sheriff, and was struck off to the Governor, no person offering to pay the taxes for less than all the land covered by the grant. The sheriff by deed, dated 27 July, conveyed the land to the Governor. This deed was, at July Term, 1815, of Burke County Court, in the words of an endorsement on it, "duly acknowledged in open court by A. A. McDowell, late sheriff, and recorded at full length, on the records of this office," and was deposited and recorded in the office of the Secretary of State, on 30 November following. On 16 November, 1819, a grant for the same land issued to the lessor of the plaintiff. If the sale and deed of the sheriff divested the title of Cathcart, then judgment was to be entered for the plaintiff; but if the title of Cathcart was still subsisting, then judgment was to be entered for the defendant.
His Honor, in giving judgment, after stating the facts above mentioned, proceeded as follows: "The act regulating these sales passed in 1798 (Rev., ch. 492), and directs the sheriff making such sales, to perfect the deed, by signing, acknowledging and delivering the same, in the presence of the next ensuing County Court, and the clerk is required to register the same in a book kept for that purpose, and to re-deliver (550) it to the sheriff, who is required before he settles his account with the comptroller, to deposit the deed with the Secretary of State, who is required to record the same, and keep it for the benefit of the State. The lands thus conveyed are declared to be vacant, and subject to entry.
"The argument insisted on is, that the deed is invalid, because the manual operation of signing, sealing and delivering it did not take place in the presence of the County Court; and moreover, because the acknowledgment of the deed was not at the succeeding court, after the sale by the sheriff. It seems to me that the fair construction of the act is that it was intended to enforce the payment of the taxes, and to provide a mode in which a record should be made of the default of the owner, upon which the land should be subject to re-entry, and that the time within which the deed was to be executed, and the manner of executing it, as provided by the act, are altogether directory to the sheriff, and that the land became subject to entry, and to be granted again, or that the forfeiture to the State became perfect, as soon as the sheriff had sold them, made a deed to the Governor, and that deed had been recorded in the Secretary's office. Unless this construction be adopted, the sale must be void, unless it shall appear that every particular act required of the sheriff and clerk, shall have been done in the prescribed mode.
"One requisition is, that before the sheriff settles his account with the comptroller, the deed to the Governor shall be deposited in the Secretary's office. Another is, that the clerk shall record it in a book kept for that purpose. Another, that the sheriff shall call on the clerk for the deed. Another that the clerk shall deliver it to the sheriff within twenty days after the term of the Court. All which requisitions appear to me to be only directory to the sheriff, and in no respect to constitute any part of the title."
Judgment was accordingly entered for the plaintiff, and the defendant appealed.
This case arises under Laws 1798, c. 492, and depends upon its sound construction. It recites that the mode of selling lands for taxes as then established by law was insufficient to secure the collection of the revenue; and then provides amongst other things, that, when no person will pay the taxes for a less quantity than the whole tract, it shall be deemed a purchase of the whole by the Governor, and the sheriff shall execute a conveyance to him, and his successors, for the use of the State; that it shall be the duty of the sheriff to perfect the deed, by signing it, acknowledging and delivery thereof in the presence of the next County Court; that the clerk shall register it in a book, to be kept for that purpose, and after doing so shall certify the same, and deliver it to the sheriff (who shall call on him for the same), within twenty days after the Court; that the sheriff shall, before he settles his account with the comptroller, deposit the deed with the Secretary of State, who shall record and keep it for the benefit of the State, and that the lands so conveyed shall be deemed vacant and subject again to entry. It then further provides that the Secretary of State shall give to the sheriff a certificate setting forth the quantity of land thus conveyed (the tax being then ad numerum not ad valorem), and that upon the deposit thereof with the comptroller, and the oath of the sheriff that he had conveyed in conformity to the requisitions of the act, all the lands by him sold for taxes, and thus purchased for the use of the State, the comptroller (the requisites of the act being complied with), shall allow the sheriff in his settlement, a credit for the tax on those lands and all charges on the sale, and his commissions thereon, as if the sum had been collected in money; and lastly that the sheriff shall be credited in like manner in his settlement at home, for the county and poor taxes.
Such are the enactments of the statute. On the part (552) of the appellant, it is contended that the sheriff's authority to sell the lands for taxes is a naked authority, and that the validity of all acts done by him, and of the title derived under him, depends upon the strict and literal observance of all the provisions of this and other laws prescribing his duties, either as preparatory to a sale, or in completion of it by a conveyance; and particularly, that since this statute defines the time and mode of conveyance, one made in a different manner, and at a different time, is void. On the other hand, the counsel for the plaintiff insists that these provisions are merely directory to the officers, and although each officer may be liable for the omission of his own duty, at the suit of the party grieved, to the extent of the damage sustained, yet that the validity of the acts of one officer cannot be impeached upon the default of another, nor the default of all affect the title of the land, whether purchased by the State or an individual. Of this latter opinion, was his Honor, upon the trial, in reference to most of the provisions of the act, and particularly in reference to those which relate to the defects alleged to exist in the deed made by the sheriff in this case. They are two: The one, that the deed was not signed, acknowledged and delivered in open Court, but only acknowledged there. The other that such acknowledgment was not at the next Court after the sale.
We have considered the act attentively in its details, and in connection with the other statutes upon the same subject. We have also weighed the principles upon which the construction of this and similar statutes insisted on by each side, are founded. In our opinion, each principle is correct to a certain extent, but in their application, neither is true, as an universal proposition.
It is true, that the sheriff has but a power, and no estate, in the land, it is also generally true, that he who has only such a power, and must conform in its execution to the terms prescribed. The grant of the power was at the will of the grantor; and the formalities with which its faithful execution are to be guarded, are equally arbitrary. They must therefore be strictly observed. There is as little doubt that the will (553) of the Legislature touching the mode of the performance of official duties or of the transfer of estates, is equally obligatory. But there may be and is a difference in the means of ascertaining that will. While exact conformity is required to the provisions of instruments conferring a power between individuals, because the Court can see no ground out of it, for any latitude of discretion, and because the instrument itself could be, and was necessarily looked to by one dealing for the estate, and a departure from its injunctions readily perceived; there are yet many instances in which forms and ceremonies, prescribed by the Legislature, are judicially regarded merely as forms and ceremonies, the omission of which shall not prejudice except in those cases which fall within the reason for prescribing them. An example is found in the law, requiring all bills of sales for slaves to be registered; yet, they are good between the parties without it, and are void only as to creditors and purchasers, for whose benefit the enactment was made. Nor has the omission of them been allowed to operate, when for the sake of executing a secondary intention of the Legislature as to the manner of performing an act within their primary intention, the principal act would be defeated. As in sales under execution without due advertisement, when the object is the satisfaction of the creditor with as little loss to the debtor as possible; which can only be attained by sustaining an honest purchase, at even an irregular sale. Hence such sales have been supported; and also those of land, where there were goods, although the statute only authorizes the sale of land for the want of goods. It cannot be said that is the consequence of the form of the writ, and that to it only need the purchaser look. For although the fieri facias is as at common law, except that it runs on its face, against lands and tenements, as well as goods and chattels, yet the provisions of the statutes control its operation in particular cass to some and in others to all purposes, as if they were incorporated into the writ. Thus the writ does not specify the advertisement order, place or mode of sale; yet the sheriff is certainly liable to the (554) action of the party for misfeasance or non-feasance in each particular. So, while the purchaser gets a good title, when the default of the sheriff consists in violating some of the directions, he will gain nothing, if it consists in the violation of others. As if he buy from the sheriff at private sale, which he could make at common law, but cannot, under our present law. Ormond v. Faircloth, 1 N.C. 636, 5 N.C. 36. Also, if the sheriff sell land or slaves at another place than the courthouse or after the last day of the week, on which by law, he ought to sell, a purchase is void. Mordecai v. Speight, 14 N.C. 428. Or, if the purchaser by active means procure the sheriff to sell without advertisement, or to sell lands when there are chattels, he takes nothing. Jones v. Fulgham, 6 N.C. 364; Lanier v. Stone, 8 N.C. 329. In these cases, the authority of the writ is not deduced from, or confined to, its terms, but to those terms as controlled by the general regulations of the law. These regulations all are alike bound to take notice of. The sheriff himself, when called on in any way, must be able to show his compliance with them. Third persons need not show affirmatively the observance on the part of the sheriff, of all legal pre-requisites to the sale, nor are they charged to take notice of all irregularities when shown on the opposite side, as in the advertisement, or adjournment of the sale or that there were chattels which the sheriff might have seized instead of the land. But where the violation of law is known to the purchaser, and he has procured it or could not but know of it, as in the case of a private sale, he is no more protected in his purchase, than the sheriff is in the sale. In these instances the purchaser breaks the law himself, or abets its breach by the officer, to the apparent prejudice of the parties to the execution or to the danger of their interests, and ought not to be upheld by the law.
The first inference from the foregoing cases and reasoning is, that the provisions of the statute, which direct the performance of certain duties under certain circumstances, are (555) to be taken as merely directory, in favor of those who cannot generally know, whether the required circumstances exist or not, and have a right to expect that the officer of the law has in all things observed the law, and that he is sufficiently responsible for the consequence of his breach of duty. The next is, that as to the officer himself, and as to all those who procure the infraction of the law by him, or abet such infraction, when they must know it to be such, and so know because the contrary cannot be, those directory provisions are strict laws and admit of no modification or departure. All such regulations are intended to protect the weak and distressed, and are guards against those in whose power they are, and cannot be dispensed with, except to avoid a greater mischief to the person whose protection is their object. But this can never apply in favor of those persons who are themselves the violators of the law, and yet seek to take benefit by the very act which is contrary to the law.
The application of these rules are familiar to sales by execution. It has been insisted by the counsel for the appellant, that they must be confined to them, and cannot be extended to sales for taxes. Cases from the Courts of the United States and some of the sister States were cited, which seemed rather to sustain the position. Doubtless that conclusion may properly follow from the framing of the particular statutes. The law may be so drawn up as to show an intention in the Legislature, that each matter prescribed shall, under all circumstances, and as to all persons, be of the essence of the sale, which is to be the final result of all those proceedings. But in this State such sales have not been regarded in the light of ex parte proceedings, inflicting a forfeiture, or to produce one consequentially of the nature of inquest of office or outlawry, nor even as a naked private power, but as a method of raising, by a species of process, money due to the sovereign; and therefore, upon the same footing, as far as the like regulations were applicable, with the methods of levying debts at the suit of private persons. Thus in Martin v. Lacy, 5 N.C. 311, it was held, that the purchaser had a good title under a sale (556) for taxes, although the sheriff had not advertised the time, or in the Gazettes prescribed. It may be mentioned here that besides the general reasoning which induced the Court to adopt that opinion, it finds some sanction in the phraseology of the act of 1792, which directs that lands sold for taxes should be advertised "as is required in cases of sale by execution," as to which the law was settled, that the purchaser was not bound to prove due advertisement. The point was again made in this Court, in Stanly v. Smith, 4 N.C. 124, and ruled as before.
But on the other hand, when the sheriff had no authority, or the purchaser's title deed shows that he has transcended his authority, and that therefore, it must have been known to the purchaser, the doctrine is settled that no title passes. Thus in the same case of Martin v. Lacy, supra, it was admitted that if no tax was due, or if it had been paid, the sale would be void. In Jones v. Gibson, 4 N.C. 48, a tract of land was sold for the taxes alleged to be due on the whole for three years, when the tax on an undivided third part had been paid. It was held for that reason that the sale was void, and also because the sheriff cannot sell for a tax longer due than two years. In Douglass v. Short, 14 N.C. 432, it was again decided that a sale for the tax of two years, when only one was due, was ineffectual; because the whole thing is not sold, entitling the former owner to the surplus of the proceeds, as on a fi. fa. but only the least part for which any person will pay the tax due. It is impossible to say for what quantity half the sum of money would have been given, as only one person might have had the whole sum demanded, while many could have raised that due. The owner, if the sale stood, would certainly be deprived unjustly of a part of his land, and as the Court could not say how much nor which part the abuse of authority took from him, it was necessarily held void for the whole.
Applying the principles of these decisions to the provisions of the revenue laws generally, and to that under (557) consideration, in particular, we think the present question may be decided on grounds entirely satisfactory.
Chapter 1, Laws 1784 (Ch. 1, Iredell Rev., 475), for ascertaining what property shall be deemed taxable, the method of assessing it and collecting the taxes, provides (s. 14) that if any owner of land shall be unwilling to pay the taxes, he may surrender the land to the State, and that it may then be taken up by others. In 1793 (new Rev., c. 394), a method is pointed out for those who had attempted to make a surrender, to do it effectually; and as to all future cases, the act of '84 is repealed. By Laws 1787 (c. 269) and of 1801 (c. 3 Martin's Rev. 170) the justices, taking the list of taxables, are required to return their lists to the County Courts immediately following the taking of them, and the clerks to transmit copies to the comptroller on or before the 1st of December following, and also the name of the sheriff and his sureties; on which the comptroller is to charge the sheriff with each tax on his books and certify it to the treasurer. The clerk is also to furnish the sheriff with certified copies of the tax lists, on which, after the first day of the succeeding month (now April) he is to proceed to collect, and is to account for and pay into the treasury the whole amount of each species of tax on or before 1 October ensuing; in default of which, the sheriff shall forfeit his commissions, and the treasury shall immediately take judgment against him for the sum reported by the comptroller, and also, by other acts, for certain penalties. Upon a settlement, if made, the sheriff shall be allowed certain commissions, and by other acts, his charges, and for insolvents under particular regulations. By Laws 1792 (c. 376) and 1800 (c. 547) the sheriff has the further time of one year, from the day prescribed by law for settling his public accounts, to finish the collection of taxes, and may do so by distress; but it is expressly provided that this privilege shall in no respect alter or interfere with the law, directing the time and manner of his accounting with and paying the comptroller and treasurer. These acts fix (558) the time at which the sheriff is chargeable, the sums to be debited to him, and the evidence on which the charge is made. By them he is bound to pay the gross revenue of his county on the first day of October, unless he discharges himself in some of the methods prescribed by law.
24 State Records, 543.
One of those methods is that now under consideration. It is unjust that the sheriff should pay the tax (then on land, according to quantity) if he had attempted to sell, but could not sell the subject taxed for the sum assessed on it. Previous acts had authorized him to distrain and sell lands for the taxes. That of 1792 makes land liable for all the taxes of the owner, and for want of personal property, directs a sale out and out, and the surplus money to be paid to the owner. That of 1794 provides that so much of the land shall be sold as shall be necessary to pay the taxes and contingent charges; but it does not say when or how that part shall be laid off, identified or conveyed. The act of 1796 directs advertisement in certain Gazettes and that the land shall be offered in tenth parts, until the sum be raised. This act was still defective in not specifying the time and method of severance and of conveyance; and also in the important particular of not providing for the case, in which a sale could not be made for want of bidders. Then comes the act of 1798, which contains the enactments before quoted, and besides them, these others. That the sheriff should set up the whole tract of land, liable for taxes, by way of Dutch auction, and strike off so much to the person who offered to take the smallest number of acres for the sum to be raised. That the purchaser may choose his quantity out of any part of the land, to be laid out in one compact body, as nearly square as may be, and adjoining some of the outer lines of the tract; and that he should within ninety days deliver to the sheriff a plat made by the county surveyor from actual survey, with the courses and distances mentioned thereon; and the sheriff is thereupon required to make him a deed.
The cases embraced in the act are therefore two: a purchase by a private person; and one by the State, or by the sheriff, for the State. The inquiry is, whether the times (559) at which the sales are to be completed by conveyances, according to the letter of the act, are, in respect of the titles derived under such sales and conveyances, mere formal collateral incidents not material to the titles themselves, or are substantive component parts of the conveyances, and essential to their validity. We take it for granted that the act of sale is not supposed by any body to vest the title till a conveyance.
With regard to a sale to an individual, we think it quite clear, upon principle and authority, that the time is material. The purchaser is to procure the survey and plat and bring it to the sheriff. These acts are his own, or he undertakes to have them performed. He must lose by his own negligence, and cannot say that a thing which the Legislature requires him to do, is unimportant in itself, and that it may be done at any period, as well as that which is prescribed. It will hardly be stated after the cases of Stanly v. Smith, 4 N.C. 124, and Douglas v. Short, 14 N.C. 432, that if the sheriff were to convey the whole tract to a purchaser, as having been bid off by him, that the deed would be good for any part, or if he were to convey an undivided share, without any survey, or a parcel polygonal in form and not contiguous to any of the outer boundaries. Why would the deed be had? — because there is an excess of power beyond that delegated, and this cannot but be known at the time to the person claiming benefit by the act. So with respect to the time of the survey; the same party is laid under that restriction, and he must observe and submit to it. There is no instance in which the law allows a person who is to do a thing, or to do it at a particular time, to have himself the benefit of it, when omitted, as if it were done, or done in due time. But certainly not in a case where the delay is a prejudice to another, and the effect of the act, when completed, is to defeat a former estate. If the purchaser be not held down to the time, he will have an indefinite period. In the meanwhile, the former owner cannot know which part is his, for no election is given to him, in default of the (560) purchaser's election. The object of the act was to have as little sold as possible, and therefore it gives the selection of the quantity bought to the purchaser, and it was also an object to afford the former owner an early opportunity to know his own, and therefore the purchaser's selection must be at a short day. Upon this act in itself, therefore, the materiality of the time is apparent, in respect of a private purchase. But if there could be a doubt on it, it is entirely removed by Laws 1809 (Rev. c. 760), which is in amendment of the former. It recites, that by the act of 1798, purchasers are required, within ninety days (which is enlarged by subsequent acts), to present to the sheriff a plat made by the county surveyor or his deputy, from actual survey, and that the surveyor is not obliged by law to make the survey within the time, by whose neglect or refusal the honest purchaser may lose his land, although he has fairly paid the State for the same; and enacts that the surveyor shall survey upon request, under a penalty, and upon his refusal, gives the purchaser a further time of six months to procure a survey by any other person, on which the sheriff shall convey. Under this act of 1808, it could not be denied that if the purchaser did not, within the enlarged time, complete his title, it would be gone entirely. The act recites upon its face that the time is essential, and that the purchase may be lost by the fault of the surveyor, and not that of the party alone, and if it were open before the judicial construction to the contrary, it is not now, after this legislative interpretation. Indeed, the very enlargement of the time is conclusive upon the necessity of observing strictly that before prescribed, for why do it by statute, if it were allowable by the courts? It cannot be said that the object was to make the restriction complete to the longer period allowed, for the act ties it down to that period, no more than the former act to the lesser term, except in the inference to be deduced from the declaratory provision, that under the former act, no title passed unless upon a survey within ninety days. After the act of 1808, this sense put by the Legislature on the law of 1798 must be received by a court. We deem it clear therefore, (561) that the purchaser must observe the time, as much as the former owner must, in his application for redemption.
The same train of reasoning leads to the conclusion that it is equally essential to the title of the State. The prescription of certain periods in the same statute, within which those things are to be done which divests an estate, the things themselves being of the same nature would seem to render it certain, that if a fixed day be material in the one case, it is in the other.
But it is said, there is a difference, as the State is in no default. All the acts are to be performed by officers, whose omissions, therefore, ought not to prejudice the State. That as a purchaser, her title ought to be supported, and unless it be, that the revenue due to her, as sovereign, will be lost upon a construction of the very act, which declares its object to be, to secure its collection, for which end the previous laws were insufficient.
If the State could be regarded as a purchaser, the Court could not sustain the purchase, if by the structure of her own laws she had made its validity to depend upon an act which has not been performed. That may well be, notwithstanding she is herself the purchaser. It is not to be presumed that she intends injustice to her citizens, and she may rather relinquish the present tax, than exact future taxes on the same land, from the owner, and then defeat his title by taking a deed under a former sale. For the owner is liable in his personal estate and other lands, for the taxes on each tract, by other statutes, and until a conveyance, the title of the land sold remains in him, and he may be assessed for it. In the case of a sale to an individual, he is made liable, it is true, to the accruing taxes, but this must mean after he has completed his title, because the provision for redemption is, that the former owner shall repay the sum paid on the purchase, with twenty-five per cent thereon, without including intermediate taxes. But the act is silent about accruing taxes when the State buys, and so it must have been intended, because one tax is always assessed on land (562) before it can be actually sold for the preceding assessment, and the public is under no obligation to give up either.
But to us, it seems that the State cannot be deemed a purchaser, whose title is to be protected, notwithstanding irregularities, within any of the principles on which they are disregarded in sales on executions. The scope of the act is not to enable the State to reacquire her territory from her own citizens. She does not wish it. As soon as she gets it under this act, it is by the same act offered for private appropriation again, upon the same terms on which it was before granted. The policy of the State, in this statute and throughout our legislation, is to part on the most favorable terms with all her public domain, with a few exceptions, and not to become again the proprietor of any that has been granted, unless in a case of necessity. This is clear from the act of 1793, which forbids the surrender of land to avoid the taxes. It is apparent on the act of 1798 itself, for she does not purchase, as a chapman does, for the least price, but only takes the land instead of the tax, when the tax can be got in no other way, and if she does not take the title, the sheriff is responsible for that tax, and the owner for the accruing ones. The great object of this provision, therefore, is not to acquire the land for the State, but to secure the collection of the taxes, to raise revenue, and have it duly accounted for and paid by the proper officers, and in justice to those officers, to make them account for, and pay only such portions as they have collected, or might have collected.
As has been already mentioned, the sheriff is charged with all the taxes upon the clerk's return, and they are to be paid by him, whether collected or not, on the first of October in each year. If they have been received either from the person assessed, or by the sale of his property, the sheriff accounts only for what has come to his hands. Before the act of 1798, there was no provision to meet the case, where no sale could be made, nor for the case of a sale at a less price than the whole tax. These omissions exposed the Treasury to the danger (563) of deficiency, and also of fraud. The sheriff might make sales for a small part of the tax, or he might really be unable to collect it by a sale. In the latter case he ought to be excused from paying. No act of the assembly is found which authorized any relief to him, at the public offices upon his return of that fact, or otherwise. But if he did not get it then, the Legislature itself would certainly extend it by a special act, for which, probably, there were many applications. To avoid these inconveniences to the public, and especially to give a certain and adequate relief to the sheriffs upon an uniform rule, which would protect them from exactions at the Treasury for monies, which they had not, and could not receive, and at the same time enforce them both to diligence in collecting, and punctuality in paying the revenue, were the causes of the act of 1798. The case within the purview of the act, is a sale and conveyance completed before the tax for which the sale is made is due, and paid at the Treasury. The office of sheriff is annual, and his accounts and settlements for each year, distinct and independent. Hence the settlement in which he is to have credit for the land sold, is that which includes that very tax. The act assures to him such credit, upon certain conditions which it puts in his power to perform, and the performance of which it requires to be established by certain evidence. The case then is not one in which the interest of the creditor, or the debtor requires the law to be indulgent in overlooking omissions in the mode of proceeding. It is one in which the creditor is secure at all events, because she can look to the sheriff and his sureties for the tax, but in which she will not, provided he makes it appear in the manner prescribed, which is plain and easily attainable that she ought not. This part of the act is therefore substantially and really for the benefit of the sheriff himself, the person charged with the duty of selling, and with the performance of all the subsequent measures of importance required for its completion. Upon established principles he ought to be held to strict performance. He is so held in this statute. It requires him to produce and file the deed in the office of the Secretary of State before he settles for the taxes, and to make oath (564) that he has conveyed all the lands struck off to the State, in conformity to the requisitions of the act. The deed must therefore have been made, recorded and filed, before the first day of October of the year in which the tax is payable. This would of itself be fatal to the plaintiff's title, since the sale was for the tax of 1813, due 1 October, 1814, and was not made till 19 November following. But it is not adduced now with a view to that position, but to those on which the decision was made in the Superior Court. If the sale must be before the day of payment, and one afterwards is void, it necessarily follows that every other act, essential to the use of the sale and deed upon that day of payment, must also precede it. That such subsequent sale is void, is deduced from these premises. The act no where engages the State to refund the taxes already paid into the Treasury, if at a subsequent day, the land cannot be sold to a private person, nor does it authorize the Treasurer or Comptroller to allow a credit, except in the settlement for the tax when due. After receiving the tax from the sheriff, it cannot be supposed that the State would keep it, and also take the land. She does not agree to purchase but for a tax due her at the sale. For the benefit of the sheriff she does that, but the act holds out no idea to him, that after he has accounted with her, he may yet impose the land on her, and reclaim the money. There is no power in the officers of State to allow such a credit, or to make the land a part of the public domain, but in one event, which has not occurred here. It must be taken here that the State has received the tax, and therefore ought not to take the land. At the Treasury the sheriff could not be reimbursed, unless by a special act, the validity of which arises not from the previous legal provision and obligations on the State, but upon the will of the Legislature, who can dispose of the revenue at pleasure. Nor is it to be supposed that such a case would meet with Legislative (565) favor, because it would encourage negligence and delays in collecting the taxes. But if it would, it has not been expressed in any public law.
The question has thus far been considered in reference to the words of this part of the Statute, and to the circumstance that the interest of the sheriff himself, was principally concerned, and therefore that he should act in due time. Whatever interest the State has, demands likewise his diligence throughout. It is important to her to know her actual net revenue, and what prior claims there are against her at the time it is paid in. She wishes to re-sell the land, that she has reluctantly taken back, and with as little delay as possible. An early and public notice of it in the county where it is situated, is therefore deemed important. She wishes to avoid and detect frauds attempted on her, and therefore while the whole matter is of recent occurrence, she requires that a sale made, shall be acknowledged of record and in open court of that county, that no pretended sale may at a distant day be imposed on her, and she brought in conflict with one of her own citizens. Every act of omission which tends to defeat these views, is inconsistent with the real intention of the Legislature, and cannot be tolerated. The State does not take the land but as a credit to the sheriff for the tax, and no conveyance to the State is to be taken as valid within the Statute, but such an one, on the production of which, the sheriff would be entitled to credit for the tax. From this it would result, that the sheriff must procure the other officers to do their duty, because otherwise the State is not bound to accept the deed, and the title does not vest in her, under this law, in any other case. The injury to the sheriff is not one which defeats an estate, but is merely pecuniary, for which his redress would be plain against the officer. But it is not necessary to decide on the effect of the omissions of others. The case is not brought to that, but arises on the omission of the sheriff himself, of an act exclusively in his own power, which the law makes essential to his own discharge, without which discharge, the State neither wishes, nor will take the land.
It may be said that the State has accepted this deed by her officers, and by other officers, has re-granted (566) the land, amongst others, to the lessor of the plaintiff, which shows that she claims the benefit as a purchaser. It is notorious that grants are always issued upon the suggestion of the grantee, that the land is vacant. The State does not warrant that, nor is it a fraud in her to grant land already appropriated. On the contrary, it is declared to be a fraud in her to obtain a grant for such land; for which the entry laws declare the grant void, and for which it may be revoked and cancelled, upon scire facias, at her suit. Besides this, the sovereign is never estopped, because she must necessarily act through agents with instructions and authority prescribed by law, and therefore may always show the truth.
To this conclusion we have formed, no objection occurs to us as plausible, unless it be, that under the statutes mentioned, the sheriff has an additional year to make collections, and may do so by distress. The answer is, that the two statutes are to be construed together, and so as to make them consistent with each other if they can be. If consistent, one does not repeal the other. They appear to us to stand together, each in full force. The sheriff may sell to reimburse himself, during the next year. But the State does not consent that he may use the name of the Governor as a bidder upon that occasion. If he delays to sell until he pays the taxes, he must find bidders. His delay is at that risk. The sale is then made for his benefit exclusively, both in form and fact, and not for that of the State; and therefore she will have nothing to do with it.
The authority to make the State a bidder is a special one, and for the sheriff's benefit, to bid for her only where there is no other bidder, for a tax due to her, and to make a deed within a certain time, upon which the sheriff shall have credit. It must therefore be strictly construed with respect to those acts, and the periods prescribed. The sheriff, for instance, could not stake off less than the whole to the State; if he did, it would be void, being beyond his restricted (567) power. There is the same limitation on his power to vest the title in the State after the period for making the deed has elapsed. Upon these grounds, it is the opinion of the Court, that the deed to the Governor is void, because it was not made or acknowledged at the Court next succeeding the sale. The duty of making it was the sheriff's; the exoneration and advantage to be derived from it, in the contemplation of the law, was his, and the consequence of the neglect must fall, and has fallen on him.
We should very reluctantly hold, that "a due acknowledgment in open Court," was not a signing, acknowledgment and delivery in Court of a deed dated at that time, unattested, and not requiring any other attestation but the certificate of the Clerk to those facts. The recognition of the signature then, would seem to be a signing then. But the Court has not examined this point very much, and therefore does not positively decide it; deeming it safest, however, in all such cases, that ministerial officers should comply with the law to the letter, especially where they are themselves to take benefit by their own acts.
The judgment of the Superior Court is reversed, and judgment upon the case agreed rendered in this Court for the appellant, the original defendant.
PER CURIAM. Judgment reversed.
Cited: Saunders v. McLin, 23 N.C. 576; S. v. Rives, 27 N.C. 314; Love v. Wilbourn, Ib., 347; Garrett v. White, 38 N.C. 134; Jordan v. Rouse, 46 N.C. 122; Woodley v. Gilliam, 67 N.C. 239; Taylor v. Allen, Ib., 350, 1, 2; Hays v. Hunt, 85 N.C. 308; Mayers v. Carter, 87 N.C. 147; Morrison v. McLaughlin, 88 N.C. 253; Fox v. Stafford, 90 N.C. 298; Stanley v. Baird, 118 N.C. 83; Worth v. Simmons, 121 N.C. 361; Stewart v. Pergusson, 133 N.C. 281.
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