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ROBERT A. PARKER AND MILES WHITE, APPELLANTS, v. WILLIAM OVERMAN.

December 1, 1855

ROBERT A. PARKER AND MILES WHITE, APPELLANTS,
v.
WILLIAM OVERMAN.



THIS was an appeal from the circuit court of the United States, for the District of Arkansas. The case is stated in the opinion of the court. It was argued by Mr. William Shepard Bryan, for the plaintiffs in error, and Mr. Lawrence, for defendant. The points made by Mr. Bryan, which are decided by the court, were the following:–– 1. That by the true construction of the act, such a deed is made evidence only of those facts which are recited in it. 2. That in order to establish the regularity and validity of a sale of land for taxes, the deed should show, upon its face, that every essential preliminary required by the statute has been performed. 3. That the deeds set out in the record, fail to recite several of these essential preliminaries; and that, therefore, they do not furnish evidence of the validity of the sale in question. There are no recitals in the deeds, that the sheriff filed his assessment list, on or before March 25; that he gave ten days' notice in each township, that the list would be laid before the next county court; that he laid the list before the county court, at the term next succeeding March 25; that the court, at that term, adjusted this tax to be paid; that on or before the first Monday in August, he filed a list of the lands of non-residents with the auditor; that the list was corrected by the auditor, and advertised when corrected. 13 How. 472; 8 Eng. (Ark. Rep.) 242; 14 Pet. 322; 4 Wheat. 77; Arkansas Revenue Act, (Dig. c. 139, § 112.) 6. That all the testimony taken together (even if the incompetent testimony on the part of the petitioner be considered) shows that the sheriff and collector did not strictly pursue the authority to sell the land for taxes, given him by the revenue act, but that he omitted several important particulars. He filed his assessment list too late; he neglected to give the ten days' notice required by law; he laid the list before the county court one term too late; and he was too late in filing with the auditor a list of the lands of non-residents.

The opinion of the court was delivered by: Mr. Justice Grier delivered the opinion of the court.

Mr. Lawrence:––

The deed which was given in evidence was prim a facie, and, in the absence of positive proof of irregularity, conclusive evidence of the regularity and legality of the tax sale. Rev. Stats. c. 128, § 96, p. 687. Roberts v. Pillow, 13 How. 472.

By the 97th section of the Revenue act, p. 687, Rev. Stats., it is enacted, that 'no exception shall be taken to any deed made by a collector,' &c., 'but such as shall apply to the real merits of the case, and are consistent with a liberal and fair interpretation of the intention of the general assembly.'

It is insisted that no objection which is taken to the proceedings in this case has any merit, considered with regard to the intention of the general assembly.

So far as the proceedings connected with the sale are concerned, a strict compliance with the statute is shown.

The only want of compliance with the literal requirements of the act, is in the fact that the affidavit of the assessor, required by section 7, was not filed till the 15th March, 1845, and the assessment list was not filed in the office of the county clerk, on or before the 25th March, as required by section 26.

Dallas county was created by act approved January 1, 1845, which act passed the lower house, 24th December, 1844, and the senate, on the 28th of the same month.

By the 9th section of that act, an election was to be held on the fourth Monday of January, of all the officers necessary for the organization of the county, except justices and constables.

The first officers of Dallas county were sworn in about the 1st March, 1845.

The sheriff filed his affidavit as assessor, 15th March, 1845, and on the 28th April, 1845, filed his assessment list in the county court. The county court, at its first term, adjudged the list as required by law, and all the proceedings thereafter were in strict accordance with the revised statutes.

It is submitted, first, that the objection, that the assessor's oath was not filed on the 10th day of January, and the assessment list on the 25th of March, has no substantial merit, because the list was to be made out and filed, in order to be adjusted by the court, upon the appeal of any one aggrieved by the amount assessed on his property.

So far as regards the land in question, they were assessed at the lowest amount permitted by the law. Of course, no advantage would have happened from an earlier notice of that which he could not object to.

And, secondly, it is submitted that the act erecting Dallas county was a legislative suspension of such portions of the revised statutes as the act, ...


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