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land, and when the time of redemption will expire.1 The purchaser must prove that he has given this notice, and a deed without such proof is void. A notice which fails to state when the period of redemption will expire, or which states that period as the same day as the day of sale, which is impossible, is not a valid notice. When the land is vacant and unoccupied, if the person in whose name the land is taxed resides in the county, although he may not claim any interest in the land assessed to him, there must be a personal service of the notice, a notice by publication in a newspaper in the county is not sufficient. Where the person to whom the land is assessed is a nonresident, and there is no newspaper published in the county, the newspaper nearest to the county is one published in a town nearest the county line. It is not sufficient to publish it in a newspaper issued at the county seat of the adjoining county, if there be a newspaper published in a town nearer the county line than the county seat of that county. Where the notice is required to be filed in the county clerk's office, if it is not found there, the presumption is that it was not given, and it is incumbent on the purchaser to establish as an affirmative fact that it was given in accordance with the constitutional provision. It is said that the failure to give the notice is a want of good faith, and is similar to the case where a party accepts a deed before the period of redemption expires. The courts of Illinois have gone so far as to say that a deed without this constitutional notice does not even give color of title under which a party may defend his actual adverse possession, but this proposition may well be doubted."

In New York, the comptroller of the State executes a deed to the purchaser at once, which is conditional, and may be defeated by redemption or the failure of the purchaser to give the notice required by the statute. This notice is to be given to any person in actual occupancy of the land at the time of the execution of the deed. It is to be in writing, and is to state that a sale was made at a certain date for taxes due thereon, that a deed was made, the date thereof, and the person to whom the deed was made, the amount of consideration money in the deed, and to add to this sum 371⁄2 per cent. and the costs of executing the deed. It is further to state that such total sum must be paid into the treasury of the State, for the benefit of the grantee in the deed, within six months after the service of the notice,

1 Const. of Ill. art. 9, § 4.

3 Wilson v. McKenna, 52 Ill. 43.

5 Weer v. Wahn, 15 Ill. 298.

2 Holbrook v. Fellows, 38 Ill. 440.

4 Barnard v. Hoyt, 63 Ill. 341.

Dalton v. Lucas, 63 Ill. 337; Bowman v. Wettig, 39 Ill. 416.

or that the deed would become absolute. The grantee is then to file the notice and evidence of service with the comptroller, who certifies the fact of notice and non-payment of money into the treasury. The deed then becomes absolute, and the occupant and all others are barred. This notice must be given to the actual occupant. Where a person occupied the premises from 1824 to 1830, and cleared and cultivated from forty to seventy acres of land, although he was absent from his dwelling for several months, and a part of the premises were occupied by another person under a lease from the first person, a deed for the land made in 1828 by the comptroller, not accompanied with the notice, is void. The object of the statute is to allow any one in possession to redeem. The occupant at the time of the conveyance is the person in occupancy at the time of actual conveyance. The period referred to is not the time when the purchaser is entitled to demand a conveyance. The occupancy extends not merely to the land under cultivation and inclosure, the pedis positio, but to the boundaries of the paper title under which the party claims who has the pedis positio of part. But there must be an intention to occupy, and where a party in running his fence accidentally incloses a part of an adjoining tract, he is not an occupant of such adjoining tract in the sense of the statute. Whether this notice can be waived, is a question which may well be doubted. Where C. was in actual possession of a tract conveyed to C. and D., and while he was so in possession, it was sold for taxes, and a deed made to the purchaser. Proof that, after the making of the deed, D., who claimed no interest in the premises, offered to buy of the purchaser, is no such waiver as affects C., who was in possession when the deed was executed, or a purchaser from C. and D. The court in this case inclined to the opinion that even a waiver of notice by the owner would not make the title good, on the principle that the statute has prescribed the mode in which the tax title may be made valid, and that mode must be adopted, and no other. The notice must be given in exact accordance with the statute. Where the comptroller was required, six months before the expiration of the period of redemption, to publish for six weeks, in all the public newspapers of the State, a notice that, unless the land was redeemed, a conveyance would be made, an omission to publish in one or more of such public newspapers is fatal to the tax title."

1 Comstock v. Beardsley, 15 Wend. 348.

? Hand v. Ballou, 12 N. Y. 544.

3 Bush v. Davison, 16 Wend. 550; Leland v. Bennett, 5 Hill. 286. Smith v. Sanger, 4 N. Y. 577.

6 Bunner v. Eastman, 50 Barb. 639.

5 Jackson v. Esty, 7 Wend. 148.

§ 116. Confirmation of Sale and Amendment of Record.-The confirmation proceedings are not of the same character in the different States. In Ohio the sale is to be confirmed by the Court of Common Pleas, a court of general jurisdiction, and when confirmed, it makes an order for the execution and delivery of a deed to the purchaser. A misrecital of the day of sale, in the order of confirmation, is a fatal defect, and although the sale was properly conducted in every respect, and is confirmed, yet if there are defects in the tax proceedings anterior to the sale, which would avoid a sale, the confirmation would give it no additional validity.3

The confirmation proceedings in Arkansas, Iowa and Wisconsin, are of a different character altogether. In the latter States they are in the nature of a bill of peace, to remove a cloud from and quiet the title of the purchaser at the tax sale. In Arkansas the purchaser at the tax sale is authorized to institute proceedings by a public notice in some newspaper published at Little Rock, for six weeks, describing the land, and stating the authority under which it was sold, and "calling on all persons who can set up any right to the lands so purchased, in consequence of any informality, or any irregularity or illegality connected with the sale, to show cause why the sale so made should not be confirmed." This notice is to be given after the period of redemption has expired, and persons contesting the title have six months after the publication of the notice to show cause in the Circuit Court of the county in which the land lies. If no person appears to contest the regularity of the sale, the court confirms the sale, if it finds certain facts to exist. If it is contested, and it appears that the sale was contrary to law, the sale is annulled. When the sale is confirmed, the decree in favor of the purchaser "is a complete bar against any and all persons who may thereafter claim such land, in consequence of any informality or illegality in the proceedings." The proceeding is similar to a proceeding in rem, and the court having jurisdiction of the land, its decree is conclusive against all persons. The decree of confirmation cannot be attacked collaterally by showing that the taxes on the land had been paid, but it may be attacked by a direct proceeding to vacate the decree, where the owner had no actual notice of the confirmation proceedings. It is not necessary that the purchaser should be in actual possession to entitle him to file a bill for a confirmation of

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1 Wilkins v. Huse, 9 Ohio, 154.

2 Northup v. Devore, 11 Ohio, 359.

3 Barger v. Jackson, 9 Ohio, 163.

Parker et al. v. Overman, 18 How. 140; Payne v. Dauley, 18 Ark. 444.

5 Wallace v. Brown, 22 Ark. 118; Hunt v. McFadgen, 20 Ark. 277.

the sale. One who has merely taken a bond from the purchaser for a deed may file it.1

In Iowa and Wisconsin the confirmation proceedings are of a similar character. The object and effect are to bar the rights and claims of the former owners of the land, and quiet the title of the purchaser, but the statute must be strictly followed. In an action for real estate, if the confirmation proceedings are introduced as evidence of title, and it appears by the recitals in the decree that in giving the notice required by statute, the order of publication was made by the clerk of the court, when the statute directed it to be made by the judge, this is a defect which may be shown in this collateral proceeding. It shows a want of jurisdiction, and the decree rendered is void. When the confirmation or foreclosure proceedings are regular on their face, and contain the findings of the court, showing its jurisdiction, they are admissible in an action for real estate, although they be afterward shown to be void for want of jurisdiction, either as to the parties or subjectmatter, to render it. It is said that where the deed for land, where there are confirmation proceedings, recites that the party assessed was a non-resident, it puts the burden of proof on the owner of the land to show that he was a resident and entitled to a demand of taxes before sale of his goods or land. The defects for which these proceedings are allowed to be attacked collaterally, it will be noticed, are not mere irregularities, but those showing a want of jurisdiction; the record must show jurisdiction, it being a special authority conferred on the courts in such cases.

In Wisconsin the owner is not allowed to contest the confirmation or foreclosure proceedings, unless he deposits with the clerk of the court at the time the sum for which the land sold, and interest at the rate of 25 per cent. per annum from the date of deed, and all sums which the purchaser has paid for taxes subsequent to the sale, with interest to the time of deposit. But if the land was not liable to taxation, the tax had been paid before the sale, or a deed had never been executed by the clerk of the board of supervisors, he may contest the proceedings without the deposit. In such case his answer must set out the facts which dispense with the deposit. The object of such a statute is to cut off all technical defenses, and compel the payment of taxes in all cases where equity and fair dealing require it. As to the constitutionality of this act, the courts of Wisconsin take the view,

1 Bonnell v. Roane, 20 Ark. 114.

? Abell v. Cross, 17 Iowa, 171; Clark v. Connor, 28 Iowa, 311; Robertson v. Young, 10 Iowa, 291.

1

"that the legislature has the power to prescribe the forms of, proceedings in the assessment and collection of taxes, and in matters of form may declare what steps shall or shall not be essential to the validity of a tax. This is but an application of equitable principles to actions brought under this act." A different view is taken of the deposit acts in other States. A statute of Illinois requiring the payment of redemption money and interest as a condition of questioning a tax deed, in an action where the tax title is involved, was considered unconstitutional, as compelling a party to buy justice."

Amendment of Record.-The records of courts are always subject to amendment at any time before the adjournment of the court. After that they are only corrected for such errors as appear upon the face of the record, and when there is information in the record from which the amendment can be made, in other words, clerical errors. This principle has been applied to tax proceedings, and clerical errors are allowed to be corrected, where the anterior files of the court furnished materials for the amendment. Where the return of the warrant for a town meeeting did not show that it was posted in a public place, nor that the collector took the oath of office, the amendment was allowed, there being enough in the record independent of the return, to show that the warrant had been posted properly and the oath taken. The amendment is confined to cases where there is merely an informal statement of facts in one part of the record which can be amended by reference to some other part. It does not admit of supplying a record by something dehors the record. Where the assessor's affidavit to the roll was required to state among other things, that the roll was "a true statement of all taxable property, excluding stocks otherwise taxable [and such other property as is exempt by law from taxation], at the true and full value thereof," and the words in brackets were omitted, the affidavit was allowed to be amended in that respect. Where the amendment is anything more than a clerical error, or informal statement, it cannot be made in a collateral action, but must be made in a distinct proceeding commenced for the purpose with a notice. In such an application the judgment on the delinquent list may be amended so as to show the date of its rendition, and the precept of sale may be amended to follow the judgment.7

250

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1 Smith v. Smith, 19 Wisc. 615, per Dixon, C. J.

2 Reed v. Tyler, 56 Ill. 288; affi'g Wilson v. McKenna, 52 Ill. 43; post, § 125.

3 Atkins v. Hinman, 2 Gilman, 451.

5 Parish v. Golden, 35 N. Y. 462.

4 Gibson v. Bailey, 9 N. H. 168.

6 Pitkin v. Yaw, 13 Ill. 251.

'Young v. Thompson, 14 Ill. 380; Eppinger v. Kirby, 23 Ill. 521; O'Connor v. Mul

len, 11 Ill. 57; Luke v. Morse, 11 Ill. 587.