Hon. S.H. Hempstead, Special Judge,
delivered tbe opinion of the Court.
Tbe lot in controversy appears to bave been taxed, for 1840, in tbe name of J ames Daniels as a non-resident, as well as in tbe name of J ames T. Starke, as a resident of Pulaski county. Tbe latter was tbe equitable owner of tbe lot; but tbe legal title was in Darwin Lindsey. /■ It does not appear tbat James Daniels bad any right to tbe lot. He was, however, a non-resident, and the lot seems to bave been regarded as non-resident property. After advertising it as such,'it was offered for sale for the taxes of 1840, at the time and place prescribed by law, and was forfeited to the State in the name of Daniels. The collector, in his settlements for that year, received credit for the taxes charged on the lot.
The taxes for 1840, were not paid on it by any one, either as tbe property of Daniels or Starke, nor do any steps appear to have been taken that year to collect tbe taxes from the latter, who is proved to have been able to pay them.
The lot remained unredeemed for two years, and, on the 13th of February 1843, was sold at Auditor’s sale, to Hutt, the defendant, who received the usual deed, and under which he asserts paramount title. He has been in actual possession of the lot since January, 1842, having then purchased it from Starke, for a full and valuable consideration, and, as far as appears, without actual notice that there, was any incumbrance upon it, of any description whatever. He purchased it for a family residence, paying two thousand dollars, its full value, and took a deed directly from Lindsey to himself ; Lindsey not having made title to Starke, although the latter had paid the purchase money. A. B. Bailey, on the 22dof July, 1841, sued out of the Pulaski Circuit Court, a writ of attachment against Starke, which was executed by seizing this lot as the property of Starke; and various proceedings being had, judgment was finally obtained in December, 1845, and the lot was sold under a special execution, on the 19th of October, 1846, and the complainants became purchasers at the sum of twenty-one dollars, and claim to be the owner's of the lot.
The statute expressly declares that Auditor’s deeds shall vest in tbe grantee, bis heirs, or assigns, a good and valid title, both in law and equity, and shall be received in all courts in this State as evidence of a good and valid title in such grantee, his heirs or assigns, and shall be evidence that all things required by law, to be done to make a good and valid title, were done both by the collector and Auditor. ” Digest 893'.
A more comprehensive provision could' hardly be found, and it might seem, at first view, to make the tax title, derived from the Auditor, valid against all objections. But that was not the design. The evil to be- remedied was, that the entire burden of proof was cast on the purchaser to show that every requisite of the law had been complied with, and the’ deed of the officer was not evenprimafacie evidence of the facts therein stated. The general and prevailing principle was, that to divest the owner of land by a sale for taxes, every preliminary step must be shown to be in conformity with the statute; that it was a naked power not coupled with an interest, and every prerequisite to the exercise of that power, must precede it; and that the deed was not prima facie evidence that these prerequisites had been observed.. Williams vs. Peyton’s Lessee, 4 Wheat 77; Stead’s Executors vs. Course, 4 Cranch 403; Rollendorf vs. Taylor, 4 Peters 349; Gains vs. Stiles, 14 Peters 322; Bloom vs. Burdick, 1 Hill 130; Sharp vs. Spier, 4 Hill 76; Leygett vs. Rogers, 9 Barb. 407.
The intention and scope of the statute were to change this rule, so far as to cast the onus próba/ncH upon the assailant of the tax title, by -making the deed prima faeie evidence of title in the purchaser; subject to be overthrown by proof of non-compliance with the substantial requisites of the law. Steadman vs. Planter’s Bank 2 Eng., 425; Jackson vs. Morse, 18 John 440. And the Supreme Court of the United States so held in passing upon our statute in the case of Pillow vs. Roberts, 13 How. S. C. R. 412; 7 Eng. 822.
Proof then that any of the substantial requisites of the law have been disregarded; or that the taxes have been paid, no matter by whom, would be sufficient to destroy tbe tax title, (18 John. 440,) whether emanating from the Auditor or Collector. And so where it appears, from the deed itself, that any substantial requisite of the law has not been observed, the deed can have no effect, and the sale is void. Moore vs. Brown, 11 How. S. C. R. 424. As where a sale is made at a different place from that prescribed by law, or on a different day, as was the fact in Hogins vs. Brashears, (13 Ark. 242,) or by a person not having authority to sell, or without notice. In these, and like cases, the deed could not be operative, and so corild not be regarded as prima fade evidence of title.
The deed of the Auditor, is not required to contain recitals. All that is necessary is, to describe' the property sold, and the consideration, and convey to the purchaser all the .right, title, interest, and estate, of the former owner; as well as all the right, title, interest, and claim, of the State to the land. (Digest 893.) The deed te Ilutt conforms to this provision, and was duly executed, acknowledged, and recorded. The objection principally urged against his title is, 'that Daniels was not the owner of the lot at all, and that it was impi'operly taxed in his name, and that the sale to Ilutt was void. But the statute answers that objection, by declaring, that no sale of any lands or town lots, for the payment of taxes, shall be considered invalid on account of its having been charged on the tax book in any other name than that of the rightful ownei*, if such land or lot be in other respects sufficiently described in the tax book, and the taxes, for which -the same is sold, be due and unpaid, at the time of such sale. ” Digest 889.
This provision is founded in sound policy. In the new States, where lands are cheap and abundant, and there is an almost entire absence of that .strong attachment to the soil, which exists in a striking degree in older- communities, conveyances of real estate are constantly made from one to another. The owner today ceases to beso to-morrow. If it were necessary to go into questions of actual ownership, the land taxed would indeed be in a precarious condition, since changes of ownership, either real or simulated, would render the collection of a tax difficult, if not impracticable.
The name of'the owner is comparatively unimportant. The description of the land in such manner as that it may be identified, and the non-payment of the tax, are the two considerations of the most importance in a tax sale. Indeed, the latter is vital, because no matter how formal and exact the proceedings may have been whenever it is made to appear that the taxes have been paid by any one, the sale is utterly void. The authority to sell is founded on the fact of non-payment. The statute intended to divest the title of the former owner for the non-payment of the tax, and for that only.
The particular land taxed, stands liable for it, no matter who may be owner, or into whosoever hands the land may pass.
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Hon. S.H. Hempstead, Special Judge,
delivered tbe opinion of the Court.
Tbe lot in controversy appears to bave been taxed, for 1840, in tbe name of J ames Daniels as a non-resident, as well as in tbe name of J ames T. Starke, as a resident of Pulaski county. Tbe latter was tbe equitable owner of tbe lot; but tbe legal title was in Darwin Lindsey. /■ It does not appear tbat James Daniels bad any right to tbe lot. He was, however, a non-resident, and the lot seems to bave been regarded as non-resident property. After advertising it as such,'it was offered for sale for the taxes of 1840, at the time and place prescribed by law, and was forfeited to the State in the name of Daniels. The collector, in his settlements for that year, received credit for the taxes charged on the lot.
The taxes for 1840, were not paid on it by any one, either as tbe property of Daniels or Starke, nor do any steps appear to have been taken that year to collect tbe taxes from the latter, who is proved to have been able to pay them.
The lot remained unredeemed for two years, and, on the 13th of February 1843, was sold at Auditor’s sale, to Hutt, the defendant, who received the usual deed, and under which he asserts paramount title. He has been in actual possession of the lot since January, 1842, having then purchased it from Starke, for a full and valuable consideration, and, as far as appears, without actual notice that there, was any incumbrance upon it, of any description whatever. He purchased it for a family residence, paying two thousand dollars, its full value, and took a deed directly from Lindsey to himself ; Lindsey not having made title to Starke, although the latter had paid the purchase money. A. B. Bailey, on the 22dof July, 1841, sued out of the Pulaski Circuit Court, a writ of attachment against Starke, which was executed by seizing this lot as the property of Starke; and various proceedings being had, judgment was finally obtained in December, 1845, and the lot was sold under a special execution, on the 19th of October, 1846, and the complainants became purchasers at the sum of twenty-one dollars, and claim to be the owner's of the lot.
The statute expressly declares that Auditor’s deeds shall vest in tbe grantee, bis heirs, or assigns, a good and valid title, both in law and equity, and shall be received in all courts in this State as evidence of a good and valid title in such grantee, his heirs or assigns, and shall be evidence that all things required by law, to be done to make a good and valid title, were done both by the collector and Auditor. ” Digest 893'.
A more comprehensive provision could' hardly be found, and it might seem, at first view, to make the tax title, derived from the Auditor, valid against all objections. But that was not the design. The evil to be- remedied was, that the entire burden of proof was cast on the purchaser to show that every requisite of the law had been complied with, and the’ deed of the officer was not evenprimafacie evidence of the facts therein stated. The general and prevailing principle was, that to divest the owner of land by a sale for taxes, every preliminary step must be shown to be in conformity with the statute; that it was a naked power not coupled with an interest, and every prerequisite to the exercise of that power, must precede it; and that the deed was not prima facie evidence that these prerequisites had been observed.. Williams vs. Peyton’s Lessee, 4 Wheat 77; Stead’s Executors vs. Course, 4 Cranch 403; Rollendorf vs. Taylor, 4 Peters 349; Gains vs. Stiles, 14 Peters 322; Bloom vs. Burdick, 1 Hill 130; Sharp vs. Spier, 4 Hill 76; Leygett vs. Rogers, 9 Barb. 407.
The intention and scope of the statute were to change this rule, so far as to cast the onus próba/ncH upon the assailant of the tax title, by -making the deed prima faeie evidence of title in the purchaser; subject to be overthrown by proof of non-compliance with the substantial requisites of the law. Steadman vs. Planter’s Bank 2 Eng., 425; Jackson vs. Morse, 18 John 440. And the Supreme Court of the United States so held in passing upon our statute in the case of Pillow vs. Roberts, 13 How. S. C. R. 412; 7 Eng. 822.
Proof then that any of the substantial requisites of the law have been disregarded; or that the taxes have been paid, no matter by whom, would be sufficient to destroy tbe tax title, (18 John. 440,) whether emanating from the Auditor or Collector. And so where it appears, from the deed itself, that any substantial requisite of the law has not been observed, the deed can have no effect, and the sale is void. Moore vs. Brown, 11 How. S. C. R. 424. As where a sale is made at a different place from that prescribed by law, or on a different day, as was the fact in Hogins vs. Brashears, (13 Ark. 242,) or by a person not having authority to sell, or without notice. In these, and like cases, the deed could not be operative, and so corild not be regarded as prima fade evidence of title.
The deed of the Auditor, is not required to contain recitals. All that is necessary is, to describe' the property sold, and the consideration, and convey to the purchaser all the .right, title, interest, and estate, of the former owner; as well as all the right, title, interest, and claim, of the State to the land. (Digest 893.) The deed te Ilutt conforms to this provision, and was duly executed, acknowledged, and recorded. The objection principally urged against his title is, 'that Daniels was not the owner of the lot at all, and that it was impi'operly taxed in his name, and that the sale to Ilutt was void. But the statute answers that objection, by declaring, that no sale of any lands or town lots, for the payment of taxes, shall be considered invalid on account of its having been charged on the tax book in any other name than that of the rightful ownei*, if such land or lot be in other respects sufficiently described in the tax book, and the taxes, for which -the same is sold, be due and unpaid, at the time of such sale. ” Digest 889.
This provision is founded in sound policy. In the new States, where lands are cheap and abundant, and there is an almost entire absence of that .strong attachment to the soil, which exists in a striking degree in older- communities, conveyances of real estate are constantly made from one to another. The owner today ceases to beso to-morrow. If it were necessary to go into questions of actual ownership, the land taxed would indeed be in a precarious condition, since changes of ownership, either real or simulated, would render the collection of a tax difficult, if not impracticable.
The name of'the owner is comparatively unimportant. The description of the land in such manner as that it may be identified, and the non-payment of the tax, are the two considerations of the most importance in a tax sale. Indeed, the latter is vital, because no matter how formal and exact the proceedings may have been whenever it is made to appear that the taxes have been paid by any one, the sale is utterly void. The authority to sell is founded on the fact of non-payment. The statute intended to divest the title of the former owner for the non-payment of the tax, and for that only.
The particular land taxed, stands liable for it, no matter who may be owner, or into whosoever hands the land may pass. The State has, by express legislation, made the tax on lands a charge against them, notwithstanding any change of title by deed, judgment, or otherwise (Digest 885.) And this is not only constitutional, but entirely proper, in any point of view, in which it may be considered. It is a proper preference for a State to give herself, in order to insure certainty in the collection of the means necessary to carry on the government. The legal effect of it is to make the State first creditor for the taxes, and give her a lien on the land, paramount to all individual claims or pretensions. It is a charge which attaches to the thing under all circumstances, and, without exception, to be discharged only by payment. No judicial proceeding can impair, displace, or postpone, this lien; nor can it be done by the acts of parties. Payment alone is effectual to discharge it, and relieve the land from the incum-brance.
Taxation should not be regarded with odium; nor should courts, by injurious and astute construction, attempt to evade the force of the revenue law; but, on the contrary, give it a fair and liberal interpretation, and countenance only such objections as apply to the real merits of the case. (13 How. S. C. R. 476.) If the stat-nte is to be enforced at all, tbis objection tó tbe title of Hutt, acquired at tas sale, cannot prevail; for it was to meet sucb cases, that tbe provision was made -as to taxing property in tbe name of a person not tbe true owner.
Tbe attachment of Bailey was levied on tbe lot, on tbe 22d of July, 1841, after tbe lot bad been struck off to tbe State, as tbe property of Daniels. Tbe attachment only bound sucb interest as Starke bad in tbe lot at tbe time, which was a right of redemption, within two years, as former owner-. ” Digest 889. After tbe expiration of two years, be bad no sucb right; and tbe land was subject to be sold by tbe Auditor in tbe manner prescribed by law. Any person who has a legal or equitable interest in land sold for taxes, is properly considered tbe owner for purposes, of redemption. (Black vs. Percifull, 1 Ark. 473.) There can be no doubt that Bailey, the plaintiff in tbe attachment suit, bad sucb an interest as to justify him in redeeming, in order to make bis attachment effectual, and to relieve tbe lot from a prior charge, of which all persons were bound to take notice. It would have been analogous to tbe case of a subsequent encumbrancer, who discharges a prior one to protect bis own and make it available. But neither Starke nor Bailey, redeemed, nor offered to redeem ; nor were tbe taxes of 1840, paid, until tbe purchase by Hutt, of tbe Auditor, in 1843. "Whatever right Starke bad, was forfeited, and the purchasers of tbe lot under execution, succeeded to no greater right than be possessed.
It follows that tbe tax title of Hutt was .paramount; unless be occupied sucb a position as to inhibit him front purchasing on bis own account, and for bis own benefit.
It is a general rule,, that tbe tenant is not allowed to dispute tbe title of bis landlord. Tbe same relation subsists between a trustee and tbe oestw que trust. Nor can tbe tenant, in tbe one case, nor tbe trustee, in tbe other,- purchase outstanding titles for their own benefit, to be set up against those for whom they bold. (14 Peters 162.) And yet tbe rule is subject to exceptions. If tbe tenant disclaims tbe tenure, and claims the fee in bis own right, of which the landlord has notice, the relation of landlord and tenant is ended, and the tenant becomes a trespasser, and is liable to be turned out of the possession, though the period of his lease has not expired. (3 Peters 47; 14 Peters 162.) But it is difficult to perceive how Hutt can be held as a tenant or trustee, lie had purchased the lot, and had received a conveyance as purchaser, and certainly between himself and Starke, no other relation than that of vendor and vendee subsisted. lie held adversely, not under him. In Blight’s Lessee vs. Rochester, (7 Wheaton 548,) Chief Justice MaRshajx, delivering the opinion of the court, said: “ The propriety of applying the doctrines between lessor and lessee, to a vendor and vendee, may well be doubted. The vendee acquires the property for himself, and his faith is not pledged to maintain the title of the vendor. The rights of the vendor, are intended to be extinguished by the sale, and he has no continuing interest in the maintainance of his title unless he should be called on, in consequence of some covenant or warranty in his deed. The property having become by the sale the property of the vendee, he has a right to fortify that title by the purchase of any other which may protect him in the quiet enjoyment of the premises. No principle of morality restrains him from doing this; nor is either the letter or spirit of the contract, violated by it. ” 14 Peters 162; 3 Littell 34; 4 Littell 274; 7 Cowen 323.
That Hutt was a trustee for Bailey, cannot be seriously insisted on. No fiduciary relations existed between them; and, under the circumstances of the case, to imply a trust would be to take one step beyond the shadowy boundary of constructive trusts, already extended beyond any safe and reasonable limits, and, in many instances, as easy to imagine as they are difficult to define.
If it was the duty of Hutt to pay the taxes accruing while he was in possession, it was certainly not his duty to pay those which accrued before that time for the benefit of any other person than himself; and so whether a tenant must pay taxes and assessments, is a question quite foreign to the case in hand,. and tbe authority to that point, cited by tbe appellant’s counsel, lias' no application: Nutt cannot be considered in the light of a purchaser pendente lite. The true position he occupies, is that of purchaser under proceedings to obtain the satisfaction of a first incumbrance, and pending which a subsequent incumbrance attaches. To say that he is a purchaser pendente Ute, under the second, would be to reverse the natural order of things, and postpone the first to the second incumbrance, and utterly destroy it. This cannot be tolerated.
The law requires the owners of land to see that the taxes are paid; and if they neglect it, they, or any one claiming under them, have no right to complain of the consequences of their own negligence. If, for disregarding this first and highest obligation a citizen owes the State, the loss of his property, charged with the tax, shall seem a disproportionate penalty, it must be remembered that to excuse it would produce the most serious embarrassments, if it did not eventually work the destruction of civil government itself.
As has been said, the lien of the State for taxes is paramount,, under all circumstances; and hence, no suit or Us pendens between individuals can affect the right of the State to sell for taxes,, and which may not inaptly be assimilated to a proceeding inrem in admiralty, in which the whole world, it is said, are parties, and the condemnation binding on all who have an interest in the thing. 9 Cranch 144.
The right to sell does not depend on the fact whether the property is taxed in the name of the rightful owner, but on the fact that the taxes are due and unpaid; and that the land is charged with them, to which charge or lien all claims and pretensions must yield, and of which all persons must take notice at their peril.
It is undoubtedly true, as argued by the counsel for the appellants, that an attachment on land constitutes a lien from the time of the seizure, of which all persons are bound to take notice; closely resembling, in. that respect, a proceeding in rem in admiralty. All who deal witb regard to land attached, must do so subject to this lien, and tbe litle of the purchaser under attachment relates to the levy of the writ, and gives him priority over all intervening liens, incumbrances or sales. 1 McLain 95; 7 Peters 464; 1 Ala. 678; 8 Ala. 606.
And although Hutt does not appear to have had actual notice of the attachment in this case, yet that could not protect him, for he was chargeable with constructive notice; and, were it not for the tax title, acquired at the Auditor’s sale, the title of Merrick & Fenno would have, to prevail; not because Hutt could not purchase from Starke after the levy of the attachment, but because it would be a junior incumbrance. An attachment constitutes a lien, merely, upon the land; but the general property of the owner is not divested, and he may just as well sell, subject to that lien, as any other. The effect of the sale is to pass the general property incumbered by the attachment. If that is extinguished by the settlement or failure of the suit, the purchaser will hold fr¿e of the incumbrance. It never was doubted that real estate under attachment might be conveyed, as well as if unincumbered. Arnold vs. Brown, 24 Pick. 95; 3 McLain 355; 6 Humph. 151.
The attachment, however, is subject to all claims, liens,incum-brances, or charges existing against the land at the time, and these may render the attachment entirely ineffectual.
That is the precise predicament of the lot in question. It had been charged with the tax of 1840, and had been struck off to the State when the attachment was levied. Supposing Starke had an interest in the lot, subject to attachment, but having failed to redeem, and the attaching creditor having failed to do so, the prior lien for the taxes ripened into a perfect tax title in Hutt, the defendant, and thus rendering the attachment unavailing, and as Hutt has the paramount title, the decree dismissing the bill should be affirmed.