De Treville v. Smalls

ERROR to the Circuit Court of the United States for the District of South Carolina.

This is an action of trespass quare clausum fregit, brought by William J. de Treville against Robert Smalls, to try the title to a certain lot of ground in the town of Beaufort, S.C..

The plaintiff having made out a prima facie case, the defendant offered in evidence the following paper:--

'UNITED STATES OF AMERICA. 'Tax-sale Certificate No. 238.

'This is to certify that at a sale of lands for unpaid taxes, under and by virtue of an act entitled 'An Act for the collection of direct taxes in insurrectionary districts within the United States, and for other purposes,' held, pursuant to notice, at Beaufort, in district of Beaufort, in the State of South Carolina, on the thirteenth day of March, A.D. 1863, the tract or parcel of land hereinafter described, situate in the town of Beaufort and State aforesaid, and described as follows, to wit:--

"Lot B, in block 23, according to the commissioners' plat,' was sold and struck off to the United States for the sum of fifteen dollars and _____ cents, being the highest bidder, and that being the highest sum bidden for the same; the receipt of which said sum in full is hereby acknowledged and confessed.

'Given under our hands at Beaufort this second day of April, A.D. 1863.

'WILLIAM E. WORDING,

'WM. HENRY BRISBANE,

'Commissioners.'

To the introduction of which the plaintiff objected, on the ground,--

First, It is not in law a certificate, in this, that it does not, upon its face, show that those proceedings have been taken by the said commissioners prior to the alleged sale, which are essential to the regularity and validity thereof, and of which the act of Congress makes a purchaser's certificate prima facie evidence.

Second, It is not a proper and legal certificate under the act of Congress, because on its face it shows that the commissioners have not sold the plaintiff's lot of land according to the enumeration of said lot required by the act.

Third, Sect. 13 of the act of June 7, 1862, which, in case of the concealment or the loss of the records of assessments and valuation of the respective lots of land to be assessed, authorizes the commissioners to value and assess the same in their own judgment, does not include the right to make a new and different enumeration and description of such lots.

Fourth, Said paper was not issued to any person, at said sale, bidding 'the sum of the taxes, penalty, and costs, and ten per cent per annum interest on said tax,' pursuant to the notice required by the act, nor to any person bidding 'a larger sum,' who, upon paying the purchase-money in gold and silver coin, or in the Treasury notes of the United States, or in certificates of indebtedness against the United States, 'became entitled' under the act 'to receive from the commissioners their certificate of sale,' and said paper on its face purports not to have been issued by the commissioners to any 'purchaser or purchasers,' at a sale made under the seventh section of the act, and is not a purchaser's certificate of sale thereunder, but a mere memorandum that the land was struck off to the United States, and as such memorandum is not made evidence by the act, it is not competent evidence in law of the facts which it recites.

The court overruled the objections and admitted the certificate, to which ruling the plaintiff excepted.

The plaintiff, in reply to the evidence of the defendant, offered evidence to prove that the commissioners did not apportion and charge the said tax upon the said lot of ground as the same was enumerated and valued under the last assessment and valuation thereof made under the authority of the State of South Carolina previous to the first day of January, 1861, but did apportion and charge the said tax upon a lot enumerated and designated as lot B, in block 23. Upon inquiry by the court, the plaintiff said that he did not expect to prove that the records of assessment and valuation of the lot made under the authority of the State actually came within the possession of the board of commissioners previous to the making of their valuation and assessment as aforesaid.

To the introduction of this evidence the defendant objected, his objection was sustained, and the plaintiff excepted.

The plaintiff then offered evidence to prove that in the advertisement and notice of the sale of said lot the same was not described as it was enumerated in the last valuation and assessment thereof made under the authority of the State previous to the first day of January, 1861, and that in said advertisement and notice the said lot was not described as the lot of said owner, nor by its situation and boundaries, nor as enumerated on the old plat of the town of Beaufort, nor by giving the streets and numbers thereon by which said lots were known and recognized, but by the enumeration and designation thereof as lot B, in block 23.

The court, on the objection of the defendant, excluded the evidence, and the plaintiff excepted.

The plaintiff then offered in evidence the following statement of W. E. Wording, one of the commissioners, to wit: 'That the sales under act of Congress, 1862, for non-payment of taxes were advertised by the commissioner to be made at Beaufort. On the Saturday preceding the sale, General Hunter, commanding the military district in which the lands advertised were situated, issued an order forbidding the sale. The commissioners, notwithstanding the order, proceeded to sell, and on the day fixed by the advertisement, and at the hour fixed therein, struck off one lot. They then adjourned the sales from day to day, meanwhile reporting the matter to General Hunter, who finally consented not to interfere with the sale, and to revoke his order, but who did not formally revoke it; and under these circumstances the sales actually took place some time in March following,-about the 13th of March,-and after the first day of sale.' He also offered to prove that during that period Beaufort County was under martial law.

To the introduction of which evidence the defendant objected, and his objection was sustained by the court; and the plaintiff thereupon excepted.

The testimony on both sides having been closed, the plaintiff requested the court to instruct the jury 'that the act of Congress approved 7th June, 1862, under which the defendant claims his title, is in conflict with the fourth clause, ninth section, first article, of the Constitution of the United States, in that the amount of the direct tax theretofore apportioned to the State of South Carolina is increased by the addition thereto of a penalty of fifty per cent, and thus is not in proportion to the census or enumeration directed to be taken in the third section of the same article, whereby all direct taxes are to be apportioned among the several States.' But the court declined so to charge, whereupon the plaintiff excepted.

Judgment was rendered against the plaintiff, who thereupon sued out this writ, and assigns for error the rulings of the court below.

Mr. Theodore G. Barker and Mr. James Lowndes for the plaintiff in error.

The Solicitor-General, contra.

MR. JUSTICE STRONG delivered the opinion of the court.