Moore v. Brown/Dissent Catron

Mr. Justice CATRON.

My objections to hearing this case are so strong, that I deem it proper to state them. This court stands exposed to impositions by fictitious cases more than other courts do, for several reasons. We have adopted it as a rule of practice, that third persons cannot be heard to prove before us that a case pending on our docket is feigned, and a decision sought at our hands intended alone to affect other men's rights, by combination of the parties of record.

In the case of Patterson v. Gaines, the attempt was made, but refused, because the persons applying to dismiss the case, were no parties of record, and had no right to be heard.

This of necessity throws us on the case itself, as here presented by the record, to ascertain whether it is fictitious. It is a case made on a certificate of division; and as those divisions of opinion are usually granted of course, on facts agreed by the parties, and as they have been ordinarily granted without examination on part of the court, by way of concession, if requested by both sides, (as is the case here,) we are very liable to be imposed on; certainly more so than other judicial tribunals, where certified cases are not allowed; and as the consequences here involved are uncommonly great, it is proper to observe unusual care to guard against imposition.

The consequences of our decision will be apparent from the following facts.

Military bounty lands were located and granted in Illinois for services rendered in the war of 1812, with Great Britian, in the name of each soldier, as it stood on the muster-roll. This grant enures to the benefit of his heir by act of Congress. The United States caused the lands to be located and patented in a body, exceeding three millions of acres, in what is known as the military tract in that State, which fronts on the Mississippi River, and is unsurpassed in fertility by any equal body of land on this continent.

The land in controversy is situated in this district, and is designated as the south half of section thirty-five, in township twelve north, of range one west of the fourth principal meridian.

Most of these grants remained without ostensible owners for many years, and have furnished, and continue to furnish, a great source of speculation. On them the tax laws of Illinois operated, and a great portion of them have been sold for taxes. This is a prominent part of the history of Illinois. It was stated in discussion of the case of Bruce v. Schuyler (4 Gilman, 249), that eight millions of dollars worth had been thus sold, up to 1847. And, taking the State throughout, a much greater quantity than this, no doubt, is held under tax sales, and auditor's deeds, like the one before us. It conforms to the act of 1826, which prescribes a form, and applies to deeds founded on previous and subsequent tax sales. Auditor's deeds, in the military tract, are the most usual title. Under this state of things, that section of country has been settled and highly improved by a large population; cultivators confidently relying on these deeds as valid titles.

The Supreme Court of Illinois held, in the case of Garrett v. Wiggins, 1 Scammon, 335, that the act of 1829, declaring auditor's deeds, standing alone, as evidence of a good title, did not apply to sales made previous to the passing of that act. And the deed of Wiggins, not having been supported by extraneous proof that the land had been legally advertised for sale, was declared to have been made without authority, and was rejected. It follows, that all deeds founded on tax sales made before 1829 are void 'on their face,' when standing alone. They must be supported by the act of limitations, or fall to the ground; and this support we are asked to withdraw by our decision, proceeding on a case made up under the following circumstances.

On the cause being taken up for trial in the Circuit Court, plaintiff introduced his title, regularly derived from the United States. He admitted, by special agreement, that the defendants were in possession when the suit was brought. They then offered to prove that they had been seven years in possession, holding under a connected title derived from a public officer, authorized by law to sell the land for non-payment of taxes, and, as the first link in their chain of title, offered a deed made by the auditor, which is set out. To its introduction the plaintiff objected, on the ground that, by reference to the face of the deed, 'and the law as it stood' when the sale was made, (to wit, 'An Act entitled An Act for levying and collecting a tax on land, and other property,' approved February 18, 1823,) it appeared that the sale for non-payment of taxes had been made by the auditor 'at an earlier day than he could, according to law, possibly do; and so it occurred as a question, whether said deed was admissible in evidence for the purpose, and in the connection for and in which the defendants offered it, the objection aforesaid notwithstanding: on which question the opinions of the judges were opposed.'

This is the case certified for our opinion. The parties agreed to the facts, made the case, and conjointly moved for a certificate of division. It was especially the act of the defendants, as on their right to make defence we are asked to pass judgment.

It is agreed, that they held under a void deed; that it was not made according to law, and void on its face. They addmit that the auditor did an act which he could not possibly do as auditor. Thus, the defendants by this agreement made the worst case for themselves that they could make, and the best case for their adversary that could be made up, for the purpose of having a decision against the defendants on the act of limitations. This is manifest, and not open to dispute. No power is left to this court to inquire whether the auditor had, or had not, authority to sell for taxes due in the years 1821 and 1822, by advertising in advance of October 1, 1823, for three weeks, and selling afterwards, in December, when the eighty-two days required by the act of 1823 had expired from the first advertisement.

The 26th section of the act declares, that the first sale of lands made by the auditor shall take place in December, 1823; at what time in December, the act does not provide. It depends on a true construction of the law. But the agreement cuts off all power of inquiring as to what the true construction of the law is; it concludes the question, and forces us to hold that the auditor sold without authority, and that his deed is void on its face; whereas the deed recites, that the land had been sold 'in conformity with all the regulations of the several acts in such cases made and provided.' It refers to no one particular law, and is fair on its face; nor could any man, not learned in the law, suppose to the contrary. Certainly not Illinois farmers, many of whom do not even read or speak our language.

In the next place, a written argument is furnished to us by the plaintiff, coming from Illinois, presenting his case in the most cogent manner, on which it is submitted; whereas, the defendants make no appearance here by counsel, set up no defence, but give the plaintiff every advantage he may desire, or can possibly have. As I have never known a real contest thus conducted, my mind is led to the conclusion, that this is a fictitious proceeding, intended to open a door for speculation, and to affect the rights of others, and that it ought not to be acted on by this court. But as a majority of my brethren are unwilling to dismiss the case, and have proceeded to decide the question whether a deed purporting to be founded on a tax sale, and which is void on its face (when compared with that law), furnishes color of title, I of course acquiesce, and will briefly examine that question.

For the purpose of arriving at a proper construction of the act of limitations of Illinois, the previous legislation of that State must be taken into consideration, so far as it can be done, from the meagre information we have been enabled to collect. From this legislation, so far as it is ascertained, it appears that the auditor was bound by law to make deeds to purchasers at tax sales, according to the prescribed form given by the act of 1826. These deeds were ordered to be recorded. The one before us is in the prescribed form, and stood duly recorded when the act of limitations was passed.

The act requires actual residence on the land for seven years, under a connected title deducible of record from the State, or from the United States, or from any public officer authorized by the laws of the State to sell lands for the non-payment of taxes.

This act is peculiar in its terms, and was made under peculiar circumstances. It was unquestionably made, as it seems to me, to protect actual settlers and cultivators, whose titles were liable to exception, against speculators and others having better titles, but who should neglect to avail themselves of their legal advantage within the time limited. In order to make a successful defence, it was necessary for these defendants to prove a seven years' residence on the land, under a connected title deducible of record from the State of Illinois, or from some public officer acting for the State, authorized to sell for non-payment of taxes. The auditor was such officer. He acted for the State; and a title in all respects emanating directly from the State is exhibited in support of a seven years' possession. A connection with a patent from the United States is equally clear. The land was assumed to be sold by force of lien for taxes due; such sale carried the true owner's title throughout, including the patent, regardless of the fact in whose name the land was advertised and sold. So the laws of Illinois expressly provide. No further connection of title can exist; nor does the act of limitations require more. But to avoid its force, an attempt is made to introduce an exception not found in the act, which of necessity comes to this, that if the deed is void for legal defect, or for a defect which depends on evidence, a link in the chain of title is wanting.

If it be true that the purchaser under a tax sale and deed is bound to ascertain the law, and if the deed is found to be void when tested by the law, and the acts done under it, no connection can be established, nor protection had, under the act of limitations; then the statute is a mere delusion, as it can only be resorted to where there is a good title.

The act was not thus idly made. It has no reference to titles good in themselves, but was intended to protect apparent titles, void in law, and to supply a defence where none existed without its aid. Its object was repose. It operates inflexibly, and on principle, regardless of particular cases of hardship. The condition of society, and protection of ignorance as to what the law was, required the adoption of this rule. This is plainly so. It was not to be expected that immigrants into a new country like Illinois, who came there seeking lands for homes, were capable of judging what complicated revenue laws required to be done to make a valid tax sale. If they found a title of record from a public officer, such as the auditor was, having general power to sell for non-payment of taxes, they were authorized to believe such title a good one, and to purchase under it. And it would be bad policy, and unjust, after the land had been improved by their labor, and increased in value perhaps twenty-fold, during a long possession, to turn them off, even by a meritorious owner, if he did not come in time. And still worse policy would it be, to leave them open to speculating purchasers, buying up doubtful titles over their heads, under the act of 1845, which allows of such purchases in Illinois. Harassment and ruin inflicted on the unsuspecting many, by the well-informed and unscrupulous few, must be, as it ever has been, the consequence of stripping cultivators of the soil of their titles by unfavorable and strained constructions; and therefore acts of limitation have at all times been liberally construed to protect cultivators in homes where their families were, and had usually grown up. And as the act of Illinois applies to actual residents, and to no others, it is entitled to a liberal construction. The one contended for is, that he who takes title by deed of record, or under one claiming by deed of record, made by a public officer with general power to sell for non-payment of taxes, is bound to know the law authorizing the officer to sell and convey; and if he fails to ascertain the law by negligence, he is held to knowledge that power was wanting, if such be the fact; that, purchasing with presumed knowledge, his title is taken in bad faith; his deed is tainted with fraud, and is no deed, but is as blank paper; and being so, a link in the chain of title is wanting, and the statute cannot apply, for want of connection of title.

This is the sum and substance of the reasoning employed on behalf of plaintiff to reject the application of the statute. Now, is this a liberal construction? Is it not in effect a repeal of the statute, and the most harsh construction that can be given to it? As, if this assumption be true, no possible conveyance made by a public officer, which is void because the requisite forms of law have not been complied with, can be maintained. All must equally fall, if not good in themselves, when compared with the law, and the acts required by law to be done before the sale is made.

We have been referred to various decisions which are supposed to support this doctrine, and especially to that made by the Court of Appeals in Kentucky in 1820, in the case of Skyles v. King, 2 A. K. Marsh. 385. This case has had controlling influence in our investigations; by far more than all others. It was this. The elder patent was made to King. Skyles claimed and held under a younger patent, and seven years' adverse possession. He was defendant. The statute of Kentucky declares, that to form the bar there shall be 'a connected title in law or equity, deducible of record from the Commonwealth.' On a trial before a jury, it was insisted that, by the terms of the act, it applied to the elder patent set up by plaintiff; that with his patent there must be connection to form a bar. And so the Circuit Court held the true meaning of the act to be, and so instructed the jury. But the Court of Appeals thought otherwise, and reversed the judgment, holding that the act meant a title tested by its own face; that is, commencing with the younger patent, and connecting with that, regardless of the elder and adversary title; that the act had no reference to the elder patent. There, the first link (the younger patent) was void, and this plainly appeared of record, as all patents in Kentucky are recorded; it follows, that, if that decision is adopted as a true construction of the Illinois statute, the case before us must be decided for the defendants; as here the first title paper offered by them is in the same condition as the younger Kentucky patent.

The cases in this court of Patton's Lessee v. Easton, 1 Wheat. 476, and of Walker v. Turner, 9 Wheat. 541, are also relied on as in point. The latter one is clearly so. It held that a void sheriff's deed was no deed, and could not be given in evidence as a link in the chain of title, nor be upheld by seven years' adverse possession, under the act of limitations of Tennessee, which required a title by grant, or deed of conveyance founded on a grant, to form a bar; and which was construed to require connection of title. This court followed the supposed settled construction of the courts of Tennessee on their own statute. But this was a mistake, there not being any such settled construction.

In 1832, the case of Green v. Neal, 6 Peters, 291, again brought before this court the same question on the Tennessee act. At that time, all controversy was settled by a decision of the Supreme Court of Tennessee, in the case of Gray and Reeder v. Darby's Lessee, Martin & Yerger, 396, which held that a sheriff's sale and deed, made pursuant to a void judgment, in a case where no jurisdiction existed in the court entering such judgment, was a sufficient connection of title; that to hold otherwise would be requiring a good connected title, and a virtual repeal of the statute. This decision was followed in the case of Green v. Neal; and all the former cases decided by this court on the Tennessee act, holding that a void deed broke the connection, were overruled, and are of no authority anywhere. They merely followed a supposed settled construction in the first two cases, and a settled one in the last case of Green v. Neal. And so we would now be bound to follow the settled construction of the courts of Illinois, if any such existed, on the statute before us.

My opinion, therefore, is, that it ought to be certified to the Circuit Court, that the auditor's deed should be admitted in evidence, and that it furnishes color of title on which the act of limitations could operate.