Mr. Chief Justice English
delivered the opinion of the Court.
This was a petition for confirmation of tax title, filed in the Prairie Circuit Court, by the appellant, James L. Hunt.
The appellant sought confirmation of title to five tracts of land, embracing 360 acres, purchased by him, on the first Monday of November, 1851, at a tax sale made by the collector of Prairie county, as the property of McFadgen, in whose name the lands were assessed and sold as a non-resident, etc.
McFadgen appeared, and, by leave of the Court, interposed a number of objections to the confirmation; and, on the final hearing, the prayer of the petitioner was refused, and he appealed.
The first objection to the confirmation, that the petition was not sworn to, is not true in point of fact.
The second objection, that two other persons were equally interested with Hunt in the title to the lands, and should have been made parties to the petition, is not sustained by the proof, nor is the objection insisted upon in the argument of the counsel for the appellee.
The 3d, 4th, 5th, 6th, 9th and 10th objections are founded upon the same grounds, and may be disposed of together. They are, in substance, that McFadgen was a resident, and not a non-resident, of Prairie county, at the time the lands in question were assessed for taxes, in the year 1851, and resided upon the lands, and continued there to reside until the sale thereof, etc,.; which was known to the assessor and collector, etc. That he had in his possession sufficient personal property to pay the taxes, etc., charged upon the lands, etc. That the assessor did not call upon him for a list of his lands, etc, for taxation, etc.; and that the collector made no demand of the taxes, etc., before proceeding to sell the lands, etc.
It appears that the lands were assessed to McFadgen as a non-resident of Prairie county, and that the collector proceeded to sell them as the lands of a non-resident.
The objections under consideration present the issue that he •was not a non-resident at the time the lands were assessed, etc., but a resident of the county, and insist, as a consequence, that he should have been assessed as such, and that the collector should have made a demand of the taxes, and proceeded against his personal property before resorting to the lands, according to the provisions of the statute for the collection of taxes assessed to resident land-holders, etc.
The collector’s deed exhibited with the petition for confirmation, not appearing upon its face to be void, and reciting that McFadgen was a non-resident of Prairie county at the time the lands in controversy were assessed to him for the year 1851, the deed must be regarded as prima facie evidence of that fact, and the burthen of proving that he was not a non-resident, but a resident at the time the lands were assessed, is upon McFadgen. Dig., chap. 148, secs. 129, 130, etc.; Ib., chap. 170, sec. 5; Parker vs. Overman, 18 Howard U. S. 137; Patrick vs. Davis, 15 Ark. 363; Merrick et al. vs. Hutt, Ib. 331; Pillow vs. Roberts, 13 How. 472; S. C., 7 Eng. 822; Gossett et al. vs. Kent et al., 19 Ark. 692; Hogins vs. Brashears, 13 Ib. 242; Bonnell vs. Roane, (present Term).
Barksdale, the officer who assessed and sold the lands, deposes that the Auditor sent him a list of lands belonging to nonresidents, and subject to assessment for the year 1851, which included the lands of McFadgen as a non-resident, etc. That at the time he so assessed the lands he believed McFadgen to be a non-resident; that he knew of no person in the county of that name, etc. He was not asked by the counsel for either of the parties, upon his examination, and did not state, the day or month in which he so assessed the lands in question.
The testimony of the witnesses conduced to prove that Mc-Fadgen moved into Prairie county, and settled on the lands in controversy, at some time between the middle of January and the first of February, 1851. One witness, who lived near him, deposed that he saw him on the next day after he moved in, and that it was the last of January or first of February. The testimony of the other witnesses is not so definite as to the time he became a resident.
There is testimony conducing to prove, also, that the assessor was in McFadgen’s neighborhood in February or March, making some assessments, and was at that time informed, perhaps, that McFadgen had moved in.
The assessor seems to have labored under the erroneous impression that the personal property of McFadgen was not subject to assessment, because he was not a resident of the county on the first day of January. But the proof in the cause fails to show that he was not a non-resident at the time the lands were assessed to him by the assessor as such, and consequently the evidence afforded by the collector’s deed is not overturned as to this point.
The seventh objection to the confirmation is, that McFadgen, as alleged, offered to pay the taxes due on the lands prior to the sale, and that the collector refused to receive the money.
The proof on this point conduces to show that on the day the lands were sold, and prior to the sale, an agent of McFadgen offered to pay the taxes charged upon the lands in Tennessee Bank paper, which the collector declined to accept, because the agent would not also agree to pay the penalty cost of advertising, etc., etc., charged upon the lands.
The collector, acting in discharge of a public duty, had no legal right to receive Tennessee Bank paper in payment of taxes. The law prohibits him from receiving any thing but current money of the United States or Treasury warrants of this State (Gould’s Dig., chap. 148, sec. 69), or notes of the State Bank, issued prior to the 10th January, 1845. Danley vs. Pike, 15 Ark. 141; 10 How. U. S. R. 203. Moreover, only a part of the sum charged upon the lands was tendered. To make the tender effectual to stop the sale of the lands, the whole of the taxes, penalty and costs should have been tendered. Parsons on Cont. 151, etc.
The eighth objection is that Hunt bid off the lands at the regular sale, agreeing to pay the taxes, etc., upon them, for 93 acres; that he refused to comply with his bid, and thereby caused the lands to be offered for sale again, after the usual sale hours, and became the purchaser of the whole of them for the taxes, etc., which was a fraud upon the rights of McFadgen, etc.
A transcript of the record of the sale, kept by the Clerk of the County Court, is made an exhibit to the petition for confirmation, and was read by the appellee upon the hearing of the cause. From this it appears that the lands of the appellee were offered for sale, by separate tracts, for the taxes, etc., due upon each; and that Hunt became the purchaser on the terms following:
1. He bid off the whole of the first tract, being the S. E of the S. E. -4- of section 12, township 3 north, range 5 west, forty acres, for the taxes, etc., due thereon, etc.
2. He agreed to pay the taxes, etc., on the second tract, of 80 acres, for 40 acres thereof.
3. On the third tract, of 80 acres, for five acres.
4. On the fourth tract, of 80 acres, for five acres: and
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Mr. Chief Justice English
delivered the opinion of the Court.
This was a petition for confirmation of tax title, filed in the Prairie Circuit Court, by the appellant, James L. Hunt.
The appellant sought confirmation of title to five tracts of land, embracing 360 acres, purchased by him, on the first Monday of November, 1851, at a tax sale made by the collector of Prairie county, as the property of McFadgen, in whose name the lands were assessed and sold as a non-resident, etc.
McFadgen appeared, and, by leave of the Court, interposed a number of objections to the confirmation; and, on the final hearing, the prayer of the petitioner was refused, and he appealed.
The first objection to the confirmation, that the petition was not sworn to, is not true in point of fact.
The second objection, that two other persons were equally interested with Hunt in the title to the lands, and should have been made parties to the petition, is not sustained by the proof, nor is the objection insisted upon in the argument of the counsel for the appellee.
The 3d, 4th, 5th, 6th, 9th and 10th objections are founded upon the same grounds, and may be disposed of together. They are, in substance, that McFadgen was a resident, and not a non-resident, of Prairie county, at the time the lands in question were assessed for taxes, in the year 1851, and resided upon the lands, and continued there to reside until the sale thereof, etc,.; which was known to the assessor and collector, etc. That he had in his possession sufficient personal property to pay the taxes, etc., charged upon the lands, etc. That the assessor did not call upon him for a list of his lands, etc, for taxation, etc.; and that the collector made no demand of the taxes, etc., before proceeding to sell the lands, etc.
It appears that the lands were assessed to McFadgen as a non-resident of Prairie county, and that the collector proceeded to sell them as the lands of a non-resident.
The objections under consideration present the issue that he •was not a non-resident at the time the lands were assessed, etc., but a resident of the county, and insist, as a consequence, that he should have been assessed as such, and that the collector should have made a demand of the taxes, and proceeded against his personal property before resorting to the lands, according to the provisions of the statute for the collection of taxes assessed to resident land-holders, etc.
The collector’s deed exhibited with the petition for confirmation, not appearing upon its face to be void, and reciting that McFadgen was a non-resident of Prairie county at the time the lands in controversy were assessed to him for the year 1851, the deed must be regarded as prima facie evidence of that fact, and the burthen of proving that he was not a non-resident, but a resident at the time the lands were assessed, is upon McFadgen. Dig., chap. 148, secs. 129, 130, etc.; Ib., chap. 170, sec. 5; Parker vs. Overman, 18 Howard U. S. 137; Patrick vs. Davis, 15 Ark. 363; Merrick et al. vs. Hutt, Ib. 331; Pillow vs. Roberts, 13 How. 472; S. C., 7 Eng. 822; Gossett et al. vs. Kent et al., 19 Ark. 692; Hogins vs. Brashears, 13 Ib. 242; Bonnell vs. Roane, (present Term).
Barksdale, the officer who assessed and sold the lands, deposes that the Auditor sent him a list of lands belonging to nonresidents, and subject to assessment for the year 1851, which included the lands of McFadgen as a non-resident, etc. That at the time he so assessed the lands he believed McFadgen to be a non-resident; that he knew of no person in the county of that name, etc. He was not asked by the counsel for either of the parties, upon his examination, and did not state, the day or month in which he so assessed the lands in question.
The testimony of the witnesses conduced to prove that Mc-Fadgen moved into Prairie county, and settled on the lands in controversy, at some time between the middle of January and the first of February, 1851. One witness, who lived near him, deposed that he saw him on the next day after he moved in, and that it was the last of January or first of February. The testimony of the other witnesses is not so definite as to the time he became a resident.
There is testimony conducing to prove, also, that the assessor was in McFadgen’s neighborhood in February or March, making some assessments, and was at that time informed, perhaps, that McFadgen had moved in.
The assessor seems to have labored under the erroneous impression that the personal property of McFadgen was not subject to assessment, because he was not a resident of the county on the first day of January. But the proof in the cause fails to show that he was not a non-resident at the time the lands were assessed to him by the assessor as such, and consequently the evidence afforded by the collector’s deed is not overturned as to this point.
The seventh objection to the confirmation is, that McFadgen, as alleged, offered to pay the taxes due on the lands prior to the sale, and that the collector refused to receive the money.
The proof on this point conduces to show that on the day the lands were sold, and prior to the sale, an agent of McFadgen offered to pay the taxes charged upon the lands in Tennessee Bank paper, which the collector declined to accept, because the agent would not also agree to pay the penalty cost of advertising, etc., etc., charged upon the lands.
The collector, acting in discharge of a public duty, had no legal right to receive Tennessee Bank paper in payment of taxes. The law prohibits him from receiving any thing but current money of the United States or Treasury warrants of this State (Gould’s Dig., chap. 148, sec. 69), or notes of the State Bank, issued prior to the 10th January, 1845. Danley vs. Pike, 15 Ark. 141; 10 How. U. S. R. 203. Moreover, only a part of the sum charged upon the lands was tendered. To make the tender effectual to stop the sale of the lands, the whole of the taxes, penalty and costs should have been tendered. Parsons on Cont. 151, etc.
The eighth objection is that Hunt bid off the lands at the regular sale, agreeing to pay the taxes, etc., upon them, for 93 acres; that he refused to comply with his bid, and thereby caused the lands to be offered for sale again, after the usual sale hours, and became the purchaser of the whole of them for the taxes, etc., which was a fraud upon the rights of McFadgen, etc.
A transcript of the record of the sale, kept by the Clerk of the County Court, is made an exhibit to the petition for confirmation, and was read by the appellee upon the hearing of the cause. From this it appears that the lands of the appellee were offered for sale, by separate tracts, for the taxes, etc., due upon each; and that Hunt became the purchaser on the terms following:
1. He bid off the whole of the first tract, being the S. E of the S. E. -4- of section 12, township 3 north, range 5 west, forty acres, for the taxes, etc., due thereon, etc.
2. He agreed to pay the taxes, etc., on the second tract, of 80 acres, for 40 acres thereof.
3. On the third tract, of 80 acres, for five acres.
4. On the fourth tract, of 80 acres, for five acres: and
5. On the fifth tract, of 80 acres, for three acres, etc.
The transcript of the record further shows that Hunt “ refused to pay up the taxes,” etc., charged upon the lands in accordance with his bids, and that the lands were offered for sale again, by the collector, “ on the evening of the same day,” and that Hunt purchased the whole of each of the five tracts for the taxes, etc.
It may be reasonably inferred from the above facts that at the first and regular sale of the lands, there were competing bidders with Hunt for each of the five tracts of land except the first, because he agreed to pay the taxes upon the second tract for one half of it, and upon the other three tracts for but a few acres of each, which he would hardly have done without competition. It may also be reasonably concluded that there were no competing bidders at the second sale in the evening, inasmuch as Hunt purchased the whole of the lands for the taxes— the five tracts embracing 360 acres, for the aggregate sum of $9 72.
It follows that the failure of Hunt to comply with the bid for the first tract oí land, at the first sale, worked no injury to Mc-Fadgen, because he purchased the entire tract at the first, as well as the last sale for the taxes, etc. But his failure to comply with his bids upon the other four tracts, at the first sale, produced a second sale of the tracts, which resulted greatly to the prejudice of McFadgen, and to the advantage of Hunt, and which cannot be regarded otherwise than a fraud upon the rights of the former. Upon the facts of the case, we think that Hunt has no just claim to come into a Court of equity and demand a confirmation of his title to the four tracts of land thus purchased by him at the second sale. His conduct in refusing to make payment upon his bids at the first sale, is treated by the law as penal (Dig., chap. 108, sec. 121); and for a court of equity to sanction and confirm such of his purchases at the second sale as were prejudicial to the owner of the lands, would be to aid him in taking advantage of his own wrong, and open a wide door for the perpetration of unfairness and fraud at tax sales.
The result is that the decree of the Court below must be affirmed as to all of the tracts of land in controversy, except the first, above described, and as to it the decree must be reversed, and a decree entered here, and certified to the Court below confirming the title of the appellant.