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THATCHER et al. v. POWELL et al. Lessee.

February 12, 1821

THATCHER ET AL.
v.
POWELL ET AL. LESSEE.



ERROR to the Circuit Court of West Tennessee.

The opinion of the court was delivered by: This cause was argued at the last term, and at the present term the opinion of the Court was delivered by Mr. Chief Justice Marshall.

This was an action of ejectment instituted by the defendants in error against the plaintiffs, to recover 640 acres of land in Montgomery county. Upon the trial in the Court below, the lessors of the plaintiffs, in support of their title, read in evidence a grant from the State of North Carolina to Stokeley Donaldson, dated the 12th of January, 1797; also a deed for the same land from the said Donaldson to John Love, dated the 13th of January, 1797, and registered in Montgomery county, on the 25th of July, 1815, upon a probate made in the County Court of Grange county, at May term of the said Court, 1814.

The defendants in that Court, to support their title, read in evidence a transcript of a record from the County Court of Montgomery county, at their July session of 1801, as follows, viz:

'Haydon Wells, who was appointed by the Court of January term, 1801, to receive the list of taxable property in Captain Boyd's company, reports to Court a list of taxable property in the county of Montgomery, not listed for the year 1799, nor taxes paid thereon, to wit: among others, 'Stokeley Donaldson 2,560 acres on Yellow Creek waters.'

'HAYDON WELLS, T. P.'

'Ordered, that the clerk make out a certificate of lands and tenements reported by Haydon Wells, Esq. for the year 1799, that are liable to the payment of taxes, agreeably to the 14th section of 'an act to ascertain what property in this State shall be deemed taxable, and the mode of collecting, accounting for, and paying public taxes.' And now, to wit, at January term, 1802, the following proceedings were had thereon, to wit, on motion, it is ordered, adjudged, and decreed, that the tracts of land entered in the names of the following persons, be subject to the payment of taxes due thereon, agreeably to report of Haydon Wells, Esq. receiver of taxable property, as delinquent for the year 1799, agreeably to law, and that execution issue accordingly:' (among others,) Stokeley Donaldson, 11 dollars 90 cents. Upon which order or judgment, an execution, bearing date the fourth Monday in March, 1802, was issued to the sheriff of Montgomery county, commanding him, that of the lands of Stokeley Donaldson, reported to be in arrears for taxes for the year 1799, he cause to be made the sum of 11 dollars 90 cents, as, also, the sum of 1 dollar 40 cents, and charges, &c. Upon this execution the sheriff made the following return:

'Levied on 2133, and advertised agreeably to the old; not sold, because the new act which requires it to be advertised in the Gazette did not come forward till the day of sale.

'JOHN SAUNDERS, Sheriff M. C.'

On the 1st of May, 1802, an alias execution issued, bearing date the fourth Monday in April, 1802, in the words of the former, on which the sheriff made the following return: 'The within land sold agreeably to law, on the 23d of July, 1802; at seven mills per acre.' They also read in evidence a deed from John Cocke, Sheriff of Montgomery county, to Samuel Vance, one of the defendants, dated the 14th of April, 1808, reciting, that whereas John Saunders, late Sheriff of Montgomery county, did, on the 23d of July, 1802, by virtue of an execution or order of sale, to him directed, from the Court of Montgomery county, expose to sale 2,560 acres of land granted to Stokeley Donaldson, or so much thereof as would be sufficient to satisfy the taxes due thereon for the year 1799, agreeably to an act of Assembly in such cases made and provided. And whereas Morgan Brown became the purchaser of 2,229 6-7 acres of the said land at seven mills per acre, he being the highest and best bidder, the taxes and costs due thereon being 17 dollars 10 cents; and the said Morgan Brown having authorized a deed to be made therefor to Samuel Vance: Now, the said John Cocke, in consideration of the said sum being paid to the said John Saunders, Sheriff, &c. doth sell and convey the said 2,229 6-7 acres of land, &c. The said deed then described one tract of 640 acres, the tract in question; also, two other tracts of 640 acres each; also, one other part of a survey of land of 309 acres granted to Stokeley Donaldson.

The lessors of the plaintiffs then introduced grants from the State of North Carolina to Stokeley Donaldson, all dated about the same time, for two different tracts of land of 640 acres each, a part of which are those described in the said Sheriff's deed, all lying upon the waters of Yellow Creek, and proved that the same lay in one connection of surveys adjoining each other, but those described in the Sheriff's deed were of much the greatest value.

Upon this evidence the Court instructed the jury, that it was for them to determine whether the said lands in the said Sheriff's deed mentioned, were the same lands which the former Sheriff Saunders had sold or not. If not the same land, then the said Sheriff's deed was not good in law. And the Court farther instructed the jury, that the said record, or any thing therein contained, was not sufficient in law to authorize the sale of the lands made by the said Sheriff Saunders, nor the deed aforesaid made to the said Vance by the said John Cocke, the said successor of the said Saunders, and that the said sale and deed did not in law vest any title to said lands in the said Samuel Vance.

To this instruction of the Court, the counsel for the defendants excepted. In consequence of this instruction, the jury found a verdict for the plaintiffs, and a judgment was accordingly rendered in their favour. The cause was then brought by writ of error to this Court.

The objections made on the record to the title papers of the plaintiff, so far as respects their registration, have not been pressed in this Court, and do not appear to be sustainable. The plaintiffs in error rely principally on the deed made by John Cocke, the sheriff of Montgomery county, on the 14th of April, 1808, and insist that the instruction given by the Circuit Court to the jury, on this point, is erroneous.

The validity of this deed depends on the act passed by the Legislature of the State of Tennessee, on the 25th of October, 1797, respecting the collection of taxes. The 3d section of that act directs the Court of each county, at its session, in the month of January, in each year, to appoint a justice of the peace, for each captain's ...


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