Simrall, J.:
Joseph Griffin sued in chancery, under the act of 10th February, 1860, “for the better security of titles to lands held and claimed under tax .sale and tax-title,” to establish and confirm a title derived mediately to him from a tax collector’s sale, and deed. He states in his bill that he entered or bought the land in question from the state, and received a deed therefor, the 6th of August, 1868. The land was sold to the.state on the 8th of July, 1862, for the non-payment of taxes assessed and due thereon for the year 1861. - There was no fraud or mistake in the assessment and sale of the land; the taxes were due and unpaid prior to the sale. The period allowed for redemption has expired.
Dogan and Martin, who were made defendants as having interest, demurred for several special causes.
The laws relating to the public revenue and the mode of collecting, by distress and sale, against'the delinquent debtor, have been so frequently changed by the legislature, that it is necessary to carefully note the time of the sale, so as not to mistake the law applicable to the [18]*18particular case. Most of the causes assigned have reference to a non-compliance with the requisitions prescribed in the Code of 1857, art. 35, pp. 79, 80, to wit: The sale was irregular, and conveyed no title to the state, because the bill does not aver: 1. “ That there was no sufficient personal property of the delinquent debtor to be found.” 2. It does not aver that there was no occupant of the lands of whom demand of payment could be made. 3. It does not show a legal assessment. * * * As a general rule, it is incumbent on the plaintiff who relies ujion title acquired under a tax collector’s sale and deed, to allege that the assessor and collector have each done the acts and things prescribed by the law. To make the owner of the property debtor for the taxes, or , create a charge upon it, and also that all those conditions have been complied with, it authorizes a sale for non-payment. This is necessary, unless the legislature has by positive enactment dispensed with the allegations and proof of some of these conditions. The general rule is, that a sale of lands for taxes is the exercise of a power granted by statute, and there must exist and concur all the facts which constitute the owner legally debtor to the state, or create the charge and which confer the right to sell for non-payment. If this case were controled by the acticle 35 referred to, the sale could not be made except upon the condition, that the tax debtor had no sufficient personal property. 2. That if the lands were never occupied, a demand of the money must be made of the actual debtor, and if not occupied, that fact must appear as excuse.
The act of 1860 changes the former law, in one or more important particulars. The seventh section declares, “ that (subject to redemption) sales of lands for taxes * * hereafter made, shall be valid to all intents and purposes, and that no such sale shall be impeached or questioned in any manner or for any cause, [19]*19saving fraud or mistake in the assessment or sale of the same, or upon proo’f that the taxes have been paid.”
This statute does not relieve the assessor or the collector from any of the before-mentioned duties enjoined by the law of 1857; but it does relieve the purchaser’s title from all other infirmities, except such as arise out of “ fraud or mistake in the assessment or the sale,” or when the “ taxes have been paid before sale.”
If the onus of proof is upon the complainant to show that there has been no “mistake or fraud,” and no payment, he ought to have alleged the manner of the assessment and sale.” If, however, those matters should come from the other side by way of defense, then the defendants must point out the “ fraud or mistake ” and show “ payment.”
We think that the rendering of the words, so as to attain the law-makers’ intention, which is the life of the law, would be to hold that the declaration, that the “ sale shall be valid to all intents and purposes,” gives the title prima facie validity, subject, however, to be defeated for “fraud or mistake in the assessment or sale, or payment.” The words “ no such sale shall be impeached or questioned for any cause, saving,” etc., implies that the enumerated causes of impeachment and question must be adduced by defendant.
In this view, the general allegation in the bill is sufficient, and the defendants, in their answer, must show mistake, fraud or payment.
The first and second assignments of causes of demurrer call in question the constitutionality of the laws under which the sale was made, as “ that the sale was not adjudicated by a court, or by due process of law,” and that it ivas “ taking private property for public use without compensation first made.”
It is too late at this day to controvert a sale of property for non-payment of taxes, on the ground that it is a taking of private property for public use. As said by [20]*20us in a former judgment at this term: “ The taxing power and the taking of private property for public use, are distinct, though both are referable to the sovereign rights of the state. The former is a debt, the consideration being the protection by government of person and property. The latter is an enforced or compulsory sale of property, either absolutely or for some easement thereon, for its value in money, first paid. Although the appropriation to public use is accomplished by judicial proceedings, or quasi such, which is evidence of divesture of private right, and a mode of ascertaining value, it has the elements of a compulsory sale.
But a sale of property for non-payment of taxes is not an appropriation of the thing sold to any public use, but is a method whereby the debt due from the delinquent taxpayers, on the charge rqion the property is enforced and realized. It was said, that a tax sale was not a:»i appropriation of private property to the public use, within the constitutional provision on that subject, in Williams v. Cammack, 27 Miss. 209, and very correctly so said. But the tax due, whilst it is a debt due from the citizen to the state, is something more — it is a “duty.” It is not due by contract in the legal sense, as is a debt between individuals; it precedes all the obligations of contracts, supersedes all private liens. Speedy and punctual payment is absolutely essential to the support and maintenance of government.
It would be impossible to keep in existence the ramified and expensive machinery of public authority which we call the state, or state government, organized “ to establish justice, to maintain public order, and perpetuate liberty,” unless the public revenues could be collected by some speedy, summary process.
We find the experience of all countries and governments the same on this subject. It is understood that the practice has prevailed for centuries under the British government of enforcing taxes by a summary method. [21]*21That method, in its essential principle, was introduced on this continent by the colonists, and prevailed until the states became independent, and the great fundamental rights of person and private property were put under the protection of constitutional limitations of power. The general feature of the plan of compulsory collection has been to arm the collector with authority to distrain and sell the property of the delinquent. It has very generally prevailed in the states from the date of independence until now.
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Simrall, J.:
Joseph Griffin sued in chancery, under the act of 10th February, 1860, “for the better security of titles to lands held and claimed under tax .sale and tax-title,” to establish and confirm a title derived mediately to him from a tax collector’s sale, and deed. He states in his bill that he entered or bought the land in question from the state, and received a deed therefor, the 6th of August, 1868. The land was sold to the.state on the 8th of July, 1862, for the non-payment of taxes assessed and due thereon for the year 1861. - There was no fraud or mistake in the assessment and sale of the land; the taxes were due and unpaid prior to the sale. The period allowed for redemption has expired.
Dogan and Martin, who were made defendants as having interest, demurred for several special causes.
The laws relating to the public revenue and the mode of collecting, by distress and sale, against'the delinquent debtor, have been so frequently changed by the legislature, that it is necessary to carefully note the time of the sale, so as not to mistake the law applicable to the [18]*18particular case. Most of the causes assigned have reference to a non-compliance with the requisitions prescribed in the Code of 1857, art. 35, pp. 79, 80, to wit: The sale was irregular, and conveyed no title to the state, because the bill does not aver: 1. “ That there was no sufficient personal property of the delinquent debtor to be found.” 2. It does not aver that there was no occupant of the lands of whom demand of payment could be made. 3. It does not show a legal assessment. * * * As a general rule, it is incumbent on the plaintiff who relies ujion title acquired under a tax collector’s sale and deed, to allege that the assessor and collector have each done the acts and things prescribed by the law. To make the owner of the property debtor for the taxes, or , create a charge upon it, and also that all those conditions have been complied with, it authorizes a sale for non-payment. This is necessary, unless the legislature has by positive enactment dispensed with the allegations and proof of some of these conditions. The general rule is, that a sale of lands for taxes is the exercise of a power granted by statute, and there must exist and concur all the facts which constitute the owner legally debtor to the state, or create the charge and which confer the right to sell for non-payment. If this case were controled by the acticle 35 referred to, the sale could not be made except upon the condition, that the tax debtor had no sufficient personal property. 2. That if the lands were never occupied, a demand of the money must be made of the actual debtor, and if not occupied, that fact must appear as excuse.
The act of 1860 changes the former law, in one or more important particulars. The seventh section declares, “ that (subject to redemption) sales of lands for taxes * * hereafter made, shall be valid to all intents and purposes, and that no such sale shall be impeached or questioned in any manner or for any cause, [19]*19saving fraud or mistake in the assessment or sale of the same, or upon proo’f that the taxes have been paid.”
This statute does not relieve the assessor or the collector from any of the before-mentioned duties enjoined by the law of 1857; but it does relieve the purchaser’s title from all other infirmities, except such as arise out of “ fraud or mistake in the assessment or the sale,” or when the “ taxes have been paid before sale.”
If the onus of proof is upon the complainant to show that there has been no “mistake or fraud,” and no payment, he ought to have alleged the manner of the assessment and sale.” If, however, those matters should come from the other side by way of defense, then the defendants must point out the “ fraud or mistake ” and show “ payment.”
We think that the rendering of the words, so as to attain the law-makers’ intention, which is the life of the law, would be to hold that the declaration, that the “ sale shall be valid to all intents and purposes,” gives the title prima facie validity, subject, however, to be defeated for “fraud or mistake in the assessment or sale, or payment.” The words “ no such sale shall be impeached or questioned for any cause, saving,” etc., implies that the enumerated causes of impeachment and question must be adduced by defendant.
In this view, the general allegation in the bill is sufficient, and the defendants, in their answer, must show mistake, fraud or payment.
The first and second assignments of causes of demurrer call in question the constitutionality of the laws under which the sale was made, as “ that the sale was not adjudicated by a court, or by due process of law,” and that it ivas “ taking private property for public use without compensation first made.”
It is too late at this day to controvert a sale of property for non-payment of taxes, on the ground that it is a taking of private property for public use. As said by [20]*20us in a former judgment at this term: “ The taxing power and the taking of private property for public use, are distinct, though both are referable to the sovereign rights of the state. The former is a debt, the consideration being the protection by government of person and property. The latter is an enforced or compulsory sale of property, either absolutely or for some easement thereon, for its value in money, first paid. Although the appropriation to public use is accomplished by judicial proceedings, or quasi such, which is evidence of divesture of private right, and a mode of ascertaining value, it has the elements of a compulsory sale.
But a sale of property for non-payment of taxes is not an appropriation of the thing sold to any public use, but is a method whereby the debt due from the delinquent taxpayers, on the charge rqion the property is enforced and realized. It was said, that a tax sale was not a:»i appropriation of private property to the public use, within the constitutional provision on that subject, in Williams v. Cammack, 27 Miss. 209, and very correctly so said. But the tax due, whilst it is a debt due from the citizen to the state, is something more — it is a “duty.” It is not due by contract in the legal sense, as is a debt between individuals; it precedes all the obligations of contracts, supersedes all private liens. Speedy and punctual payment is absolutely essential to the support and maintenance of government.
It would be impossible to keep in existence the ramified and expensive machinery of public authority which we call the state, or state government, organized “ to establish justice, to maintain public order, and perpetuate liberty,” unless the public revenues could be collected by some speedy, summary process.
We find the experience of all countries and governments the same on this subject. It is understood that the practice has prevailed for centuries under the British government of enforcing taxes by a summary method. [21]*21That method, in its essential principle, was introduced on this continent by the colonists, and prevailed until the states became independent, and the great fundamental rights of person and private property were put under the protection of constitutional limitations of power. The general feature of the plan of compulsory collection has been to arm the collector with authority to distrain and sell the property of the delinquent. It has very generally prevailed in the states from the date of independence until now. In perhaps all the state constitutions are reservations from, or restrictions upon, legislative power, to the effect that no person “ shall be deprived of life, liberty or property except by due course of time.” “ Private property shall not be taken for public use without just compensation first made.” “ The right of trial by jury shall remain inviolate.”. These summary rules have been objected to as infringing one or all these provisions.
It is quite manifest that the “ inviolability of jury trials” referred to, are those which were well known and practiced at the time these constitutions were adopted, and did not extend to all suits- which affected the person or property. It was not designed to abrogate courts of equity or of admiralty, or those inferior tribunals and quasi judicial proceedings which had never used the jury. The same is true of “ due course of law.” According to Mr. Webster, that is due course of law when the citizen holds his “life, liberty, property under the protection of general rules of society” which have been promulgated beforehand. Property may be lost or gained by “due course.of law” in an equity court without a jury; so in- the admiralty court-; so before a justice of the peace; so, too, if- payment of taxes is enforced by a summary method prescribed beforehand by competent authority, the delinquent owner may be said to lose his property by due course of law.
[22]*22The framers of the state constitutions found these summary tax proceedings in use at the time they devised these restrictions upon legislative power. Most of them had come down from Magna Charta, and were consecrated in the common law. The same modes of collection in all the essentials have been continued in the states since, and we are impelled, therefore, to the conclusion that it would not have been designed or intended to establish a constitutional provision which would abolish them, and that a proper assessment, approved by competent authority, and a sale on notice, by the designated officer, is such an exertion of judicial and executive authority, conducted according to “ general rules,” prescribed in that case, as does not conflict with these articles of the constitution. Nor does it matter whether the tax is a charge, when assessed upon the thing, so that the property is liable, whether assessed to the true owner or not, so far as the question under consideration is concerned. We have not intended to refer to adjudications on the subject which has been very extensively discussed in this court. See Duncan v. Winston, 31 Miss. 136; Griffin v. Nixon, 38 ib. 433.
We are of opinion that these objections ought not to prevail, and that a sale of lands, made under the law in force at the date of this sale, is not obnoxious to the constitution.
A further cause assigned is, that the taxes, for which sale was made, were in aid of the rebellion. Enough does not appear in the bill fairly to raise that point. If there be anything in it, the defendants may set it up by answer. But the delinquency may have been on the assessment for ordinary state dues, the support of the civil establishment, or it may have been for this, including a sum in aid of the rebellion ; what then ? Part of the tax would be good and part bad, and the good and bad might be separated. In such circumstances, the case would be like a sale under two writs oí fieri facias, one [23]*23of which was void and the other valid. See Cassell v. Backrack, 42 Miss. 65.
From these views, it follows that the demurrer ought to have been overruled. The decree will be reversed, the demurrer overruled, and cause remanded for plea or answer within fifty days from this date.