back to the expiration of the period of redemption.1 So money paid into the treasury before it was lawful to pay it, is considered as being paid afterwards when the right to pay accrues. The case of Donahoe v. Veal, is considered as asserting a contrary rule, but it merely decides that the deed does not relate back to the time of the sale, so as to vest in the purchaser a right to bring trespass for timber cut on the land before the execution of the deed and before the expiration of the period of redemption. It has never been claimed, that the fiction of relation would extend to a period anterior to the expiration of the period of redemption.

5

The deed must contain a description of the land sold, and the description must be such as to identify the land from the face of the deed, in connection with the landmarks of the tract and its locality. Except in those States where the proceeding is in rem against the land, without reference to the owner, the name of the owner is an essential element in the description. False description vitiates the deed, but, it must be such as is calculated to mislead. The description of a lot as beginning at the north and east corners of a lot, then along G. street 90 feet, then at right angles to G. street northerly, the nature of the case showing that it must be westerly, such falsity of description does not vitiate. The description should conform to that given in the previous proceedings as to the assessment, and when there is a judicial condemnation, the judgment and the notice of sale. If the statute points out a mode of description, that must be followed. The same certainty is required as in the assessment; it should be sufficiently certain to enable the sheriff in executing a writ of possession to put the party in possession. The following descriptions are defective: "All the estate, right or title the owner had in a certain lot and buildings in New Providence taxed to H. I., being about 10 acres on the easterly side of the road leading from O. to T. For further description reference is made to mortgage to W. A., recorded in New Providence." There was no assessment to H. I., and no mortgage. "640 acres adjoining Taylor and Mosby's landing in said county of Jefferson;" the boundaries on north and west were given correctly; on the east as bounded by a certain tract, when it was only partly bounded by it on the east; on the south by land.

1 Ferguson v. Mills, 3 Gilman, 358. 3 19 Mo. 331.

Wyman v. Smith, 45 Maine, 522.

4 Green v. Craft, 28 Miss. 70: Sutton v. Calhoun, 14 La. An. 209.

5 Bosworth v. Danzier, 25 Cal. 296; 2 N. Y. 66; Purcell v. Porter, 20 La. An, 373. Where the names of streets have been changed by an ordinance passed subsequent to the sale, a description which would have been correct at the time of the sale will be valid. 6 Trippe v. Ide, 3 R. I. 51. Bonnell v. Roane, 20 Ark. 126.

which in fact was separated from it by the land of another person.1 The description, 2,500 acres, to be taken out of a certain league, to commence at the beginning quarter and taken in a square, if it will admit of it, was said to be void if the tract cannot be contained in a square. The court, in that case, say, that if the description is so uncertain as to require parol evidence to identify it, the deed is void. The tax deed is not like that of a grantor in cases of contract, to be construed most strongly against him; here the proceedings are in invitum, and nothing is to be presumed. In Wisconsin, where the land was described in the deed as lying in Washington City, now called Port Washington, and the name on the recorded plat of the town was "Wisconsin City," parol evidence was admitted that the locality was familiarly known to citizens and conveyancers as Washington City, and the deed was sustained.3

1 Hill v. Mowray, 6 Gray, 551.

? Wofford v. McKinna, 23 Texas, 36.

3 Mecklem v. Blake, 19 Wisc. 397. For illustrations of description, valid and invalid, see ante, § 95.

CHAPTER XVII.

THE TITLE OF THE PURCHASER AFTER THE DEED.

§ 119. How Title Established.-The deed is but one of the links in the chain of title. The power under which it is executed is a naked power, and every prerequisite to its execution required by statute must be shown. The sale is made and deed executed because the owner has failed to do what was required of him by the tax laws of his State. To these laws we must look to ascertain if all the steps required by the statute have been taken before the execution of the deed. Each step, from the assessment of the land to the delivery of the deed, must be taken, and in a controversy as to the title must be established by proof, and if any of the steps to be taken are required to be recorded or lodged in the office of the registrar, county clerk, or that of any tax officer, the doing of these acts must be shown by the record, unless it be lost or destroyed. The general doctrine is beyond question, that the deed, until the prerequisites of the tax laws are established, is a nullity. In establishing the prerequisites of the tax laws, the recitals of the deed are not evidence against the owner. This rule is well established, except in Kentucky, where from an early day the courts held that the deed was prima facie evidence of the facts recited. They require all the prerequisites to be established, but so far as the deed recites them, it is good evidence of their performance, until rebutted by testimony. The principle on which the Kentucky cases are based is that executive and ministerial officers are presumed to comply with the law in the performance of their duties. The doc

1 Williams v. Peyton, 4 Wheat. 77; Gaines v. Stiles, 14 Peters, 322; Ellis v. Kenyon, 25 Ind. 134; Johnson v. Ellwood, 53 N. Y. 435; Stevens v. McNamara, 36 Maine, 176; Alvord v. Collin, 20 Pick. 418; Brown v. Wright, 17 Vt. 97; Dikeman v. Parish, 6 Barr, 210; Love v. Gates, 4 Dev. & Batt. 363; Elliott v. Eddins, 24 Ala. 508; Waldrun, v. Tuttle, 3 N. H. 340; Lafferty v. Byers, 5 Ham. 458; Chapman v. Bennett, 2 Leigh, 329; Flanagan v. Grimmett, 10 Gratt. 426; Dyer v. Boswell, 39 Ind. 465.

2 Jessee v. Preston & Keith, 5 Gratt. 205; Williams v. Peyton, 4 Wheat. 77; Early v. Doe, 16 How. 618, 619; Worthing v. Webster, 45 Maine, 270; Polk v. Rose, 25 Md. 153; Smith v. Corcoran, 7 La. 46.

3 Allen v. Robinson, 3 Bibb, 326; 2 A. K. Marsh. 244; 6 Monr. 206; 5 J. J. Marsh. 145.

trine, however, is confined to recitals essential to the validity of the deed, and matters which the register is presumed to know.1

The difficulty of establishing by proof all the facts on which a tax deed was founded-many of which were in pais, and depended on the memory of witnesses as to transactions long past, others of record, where the records were kept by incompetent officials-was so great that a valid tax title was the exception rather than the rule. Few persons would purchase at a tax sale, and the sale of land for taxes became a very inefficient mode of enforcing their payment. To avoid these difficulties, all the States have enacted laws making the tax deed prima facie evidence, and shifting the burden of proof from the purchaser to the owner. The statutes differ very much in the various States, and in the same State at different periods of its history.

In Arkansas, the statute was that the deed should be "evidence of the regularity and legality of the sale of such lands;" in New York and Wisconsin, "shall be prima facie evidence that all the proceedings are regular;" and in Wisconsin and Kansas, that "all the proceedings from the valuation of the assessors to the execution of the deed are regular." The effect in these and similar cases is to make a prima facie case for the purchaser. When he produces a tax deed, and proves its execution as at common law, or in the mode prescribed by statute, it is presumed that every step has been taken to authorize the sale of the land and the execution of a conveyance to the purchaser. But it is only prima facie, and the owner may attack the deed by showing that any of the prerequisites, from the assessment to the deed, have been omitted; it only shifts the burden of proof from the purchaser to the owner.'

In Tennessee, the deed is to recite certain facts, as that the land lies in the county in which it is reported for non-payment of taxes; that it was duly reported for non-payment; that an order of sale was awarded, and the sale duly advertised. A deed reciting these facts is prima facie evidence of the facts recited, and as to all judgments and orders of sale is conclusive, unless attacked by showing that the taxes were paid before judgment or sale. So in Indiana, and under an ordinance of the city of Brooklyn, N. Y., the deed was made prima

1 Morton v.

Waring, 18 B. Mon. 72; Lamb v. Gillett, 6 McLean, 365.

2 Pillow v. Roberts, 13 How. 472, 476; Thomas v. Lawson, 21 How. 332; Hand v. Ballou, 12 N. Y. 541; Johnson v. Ellwood, 53 N. Y. 435; Rathbone v. Hooney, 58 N. Y. 468; Abbott v. Lindenbower, 42 Mo. 162; Whitney v. Marshall, 17 Wis. 174; Eaton v. North, 20 Wis. 419; Bowman v. Cockrell, 6 Kansas, 311; Hobson v. Dutton, 9 Kansas, 477; Harkness v. Bd. of Public Works, 1 McArthur, 121; Twombly v. Kimbrough, 24 Ark. 459.

Hightower v. Freedle, 5 Sneed, 312.

facie evidence of the facts recited.1 And, where, under a subsequent statute as to the city of Brooklyn, it was provided "that the deed shall contain a brief statement of the proceedings had for the sale of the land, and shall be evidence that such sale and other proceedings were regularly made," it was construed to relate to the sale and proceedings connected with it, but not to embrace the regular assessment of the land and other steps to be taken prior to the time when the right to sell accrued. By statute in 1855, in sales of land for taxes, the deed of the comptroller is made "presumptive evidence that the sale and all proceedings prior thereto, from and including the assessment of the land," were regular. Under this act the burden of proof is on the party attacking the deed to show the defects in the tax proceedings. But even under this statute, which makes the deed cover all the proceedings, if a deed is introduced showing a sale of land for taxes assessed as non-resident land, the rolls of the town for those years showing the land to be assessed to a resident is a defect which makes the deed void. The land must be assessed according to its legal character, and when it is shown to be assessed otherwise, the presumption of regularity arising from the execution of the deed, is overcome.1

And in California, where the collector is to give to the purchaser a certificate, specifying particularly all the essentials of the sale, and the deed is to state substantially what is contained in the certificate, although the deed does not recite all the facts, it is prima facie evidence of the facts recited. If it recites facts sufficient to show the authority under which it is executed, so as to be good at common law, it is prima facie evidence of the facts recited, and as to facts not recited they may be shown by evidence aliunde.5 Indeed it may be considered to be an established rule, that when the deed which shows substantially the authority under which it is executed, is made prima facie evidence, the omitted facts in the chain of title, from the assessment to the deed, may be shown by evidence aliunde, differing in this respect from the class of statutes which makes the deed evidence that all the proceedings are regular. In such case it is only evidence of the facts recited," whereas in the former class it is prima facie evidence of title.

1 McEntire v. Brown, 28 Ind. 347; Scott v. Onderdonk, 14 N. Y. 15.

2 Rathbone v. Hooney, 58 N. Y. 463.

3 Coleman v. Shattuck, 62 N. Y. 348; s. P. McCauslin v. McGuire, 14 Kansas, 236.

4 Ritter v. Worth, 58 N. Y. 627.

5 Moss v. Shear, 25 Cal. 38; O'Grady v. Barnhisel, 23 Cal. 287.

Budd v. Bettison, 17 Ark. 546; Gossett v. Kent, 19 Ark. 602; 20 Ark. 114; Dukes v. Rowley, 24 Ill. 210; Bailey v. Doolittle, 24 Ill. 577; Hinman v. Pope, 1 Gilman, 131.