MARX
v.
HANTHORN.

*177 Mr. John H. Mitchell and Mr. John M. Gearin for plaintiff in error.

Mr. J.N. Dolph, (with whom was Mr. George H. Durham on the brief,) for defendant in error.

*180 MR. JUSTICE SHIRAS, after stating the case, delivered the opinion of the court.

As there must be express statutory authority for selling lands for taxes, and as such sale is in the nature of an ex parte proceeding, there must be, in order to make out a valid title, a substantial compliance with the provisions of the law authorizing the sale. A statutory power, to be validly executed, must be executed according to the statutory directions. It is, no doubt, true that there may be provisions in tax laws that are made in the interest of the public, and which do not concern the taxpayer; and a failure to punctiliously observe them may furnish him with no just ground of complaint. But the well established rule is, as above stated, that observance of every safeguard to the owner created by the statute is imperatively necessary. So, too, it is the rule, when not modified by statute, that the burthen of proof is on the holder of a tax deed to maintain his title by affirmatively showing that the provisions of the law have been complied with.

We do not perceive that these general rules have been materially modified by the statutes of Oregon, to which our attention has been called. It is true that, as to certain preliminary and directory conditions of tax sales, the Oregon statute, dated December 18, 1865, and cited as section 90 of the general laws, declares that upon delivery of a tax deed "all the proceedings required or directed by law in relation to the levy, assessment and collection of the taxes and the sale of the property shall be presumed regular, and to have been had and done in accordance with law; and such deed shall be prima facie evidence of title in the grantee, and such presumption and such prima facie shall not be disputed or avoided, except by proof of either; (1) fraud in the assessment or collection of the tax; (2) payment of the tax before sale, or redemption after sale; (3) that the payment or redemption was prevented by the fraud of the purchaser; (4) that the property was sold for taxes for which the owner of the property at the time of the sale was not liable, and that no part of the tax was levied or assessed upon the property sold." But *181 by the amendatory act of February 21, 1887, (2 Hill's Annotated Laws, 1309, ed. 1892,) the provision respecting the evidential effect of the deed was changed so as to read as follows: "Upon the delivery of such deed all the proceedings required or directed by law in relation to the levy, assessment and collection of the taxes, and the sale of the property, shall be presumed regular, and such deed shall be prima facie evidence of title in the grantee."

At the trial the plaintiff, the holder of the tax deed, was given the benefit of this legislation, as his deed was treated as making out a prima facie right to recover, and the evidence upon which the questions in the case arose was put in by the defendant.

It was, indeed, contended by the plaintiff in the court below and likewise in this court, that the irregularities or disregard of law which, in the opinion of that court, invalidated the tax sale, had to do with proceedings which the act of 1865 protected from inquiry, and in respect to which it made the tax deed absolute evidence; and that, therefore, the subsequent legislation declaring the effect of the tax deed, as evidence, to be merely prima facie, was unconstitutional and ineffective so far as the plaintiff was concerned, he having received his deed before the enactment of the latter law.

Courts of high authority have held that mere rules of evidence do not form part of contracts entered into while they are in force, and that it is competent for the legislature to, from time to time, change the rules of evidence, and to make such change applicable to existing causes of action. Rich v. Flanders, 39 N.H. 304; Howard v. Moot, 64 N.Y. 262; Kendall v. Kingston, 5 Mass. 524; Commonwealth v. Williams, 6 Gray, 1; Goshen v. Richmond, 4 Allen, 458.

"It must be evident that a right to have one's controversies determined by existing rules of evidence is not a vested right. These rules pertain to the remedies which the State provides for its citizens; and, generally, in legal contemplation, they neither enter into and constitute a part of any contract, nor can be regarded as being of the essence of any right which a party may seek to enforce. Like other rules affecting the *182 remedy, they must, therefore, at all times be subject to modification and control by the legislature; and the changes which are enacted may lawfully be made applicable to existing causes of action, even in those States in which retrospective laws are forbidden." Cooley's Constitutional Limitations, 457, 4th ed. 1878.

But as the court below held that, if and so far as the legislature had the power to and did make the tax deed conclusive evidence of title, the legislature had no power, as against a purchaser under that law, to make the deed, by a subsequent enactment, prima facie only, it is not necessary for this court to consider whether we can adopt that view of the question.

The court held that even if the act of 1887 could not constitutionally avail, as against the plaintiff, to change the evidential effect of the tax deed, yet that the act of 1865 could not operate to prevent the defendant from showing that she had no notice, actual or constructive, of the tax sale. Forster v. Forster, 129 Mass. 559.

The view of the court was that notice of the sale was an essential part of the proceedings; that the legislature did not have the power to make the tax deed conclusive evidence of the fact; that there must be an opportunity given for investigation and trial; and that the legislature cannot, under the pretence of prescribing rules of evidence, preclude a party from making proof of his right by arbitrarily and unreasonably declaring that on some particular circumstance being shown by the other party the controversy is closed by a conclusive presumption in favor of the latter.

Without going at length into the discussion of a subject so often considered, we think the conclusion reached by the courts generally may be stated as follows: It is competent for the legislature to declare that a tax deed shall be prima facie evidence not only of the regularity of the sale, but of all prior proceedings, and of title in the purchaser, but that the legislature cannot deprive one of his property by making his adversary's claim to it, whatever that claim may be, conclusive of its own validity, and it cannot, therefore, make the tax deed conclusive evidence of the holder's title to the land.

Mr. Cooley sums up his examination of the cases on this *183 subject in the following statement: "That a tax deed can be made conclusive evidence of title in the grantee we think is more than doubtful. The attempt is a plain violation of the great principle of Magna Charta, which has been incorporated in our bill of rights, and, if successful, would in many cases deprive the citizen of his property by proceedings absolutely without warrant of law or of justice; it is not in the power of any American legislature to deprive one of his property by making his adversary's claim to it, whatever that claim may be, conclusive of its own validity. It cannot, therefore, make the tax deed conclusive evidence of the holder's title to the land, or of the possible jurisdictional facts which would make out title. But the legislature might doubtless make the deed conclusive evidence of. . . everything except the essentials." Cooley on Taxation, 521, 5th ed. 1886.

This brings us to a consideration of the matters put in evidence by the defendant, going to overthrow the prima facie presumptions created by the tax deed. There were two. The land in question was admitted to belong to Ida J. Hanthorn, and that fact was found by the court below; but on the delinquent tax roll the property is alleged to belong to Ida F. Hawthorne, and it further appears by the return of the sheriff that the property was advertised and sold as the property of Ida F. Hawthorn.

It was the opinion of the court below that due and reasonable notice of the sale of property for a delinquent tax is necessary for the validity of such sale, and that the fair meaning of the Oregon statutes regulating judicial sales and sales for taxes is that the name of the owner of the lands to be sold shall appear in the notice of sale; and the court was further of the opinion that to give notice that the property of Ida F. Hawthorn was to be sold was not only not notice that the property of Ida J. Hanthorn was to be sold, but was actually misleading, and that such want of notice or misleading notice vitiated the sale.

It is contended, on behalf of the plaintiff, that the statute does not require that the notice should name the owner or name him correctly; that it is sufficient to correctly describe *184 the property which is to be sold; and that, at any rate, the notice in the present case was sufficient within the meaning of the rule of idem sonans.

We agree with the court below in thinking that the reasonable meaning of the statutes regulating notices and sales of property for taxes, is that such notice and advertisement should give the correct names of those whose property is to be sold. While the statutes do not in terms say that the names of the owners should be published, yet such would seem to be the fair presumption, and the present case shows that such was the construction adopted by the officials, as they did name, though incorrectly, an owner in the notice.

These questions have been determined, so far as the laws and constitution of Oregon are concerned, by a recent decision of the Supreme Court of that State in the case of Strode v. Washer, 17 Oregon, 50. In that case it is held that in an action to determine the title to land claimed under a tax deed, evidence can be received to show that the assessment claimed to have been made was void, in that the property in dispute had been assessed with other property not owned by the defendants, and the value of all fixed at a gross sum, and that it was error to exclude such evidence, even under a statute making a tax deed evidence of the regularity of an assessment; and it was further held that the amendment of 1887, changing that feature of the act of 1865 which made a tax deed conclusive evidence of the regularity of the levy, assessment, collection of taxes, and sale of the property, did not impair the obligation of contracts as to purchases made prior to the amendment, but simply changed the rule of evidence.

This decision was not made till after the trial of the present case in the Circuit Court of the United States; but, in the absence of any previous decision by the Supreme Court of Oregon to the contrary, we regard it as a conclusive construction of the meaning and effect of the state statutes in question. We also concur with the court below in thinking that, by no reasonable application of the rule of idem sonans, can the name of Ida J. Hawthorn be deemed equivalent to that of Ida J. Hanthorn.

*185 Another particular in which, it is claimed on behalf of the defendant, there was a disregard of law invalidating the sale, is found in the assessment of the two lots 3 and 4 in block E as one parcel. The statute prescribes that the assessor shall set down in the assessment, in separate columns, "a description of each tract or parcel of land to be taxed, specifying, under separate heads, the township, &c., or, if divided into lots and blocks, then the number of the lot and block;" and the contention is that grouping the lots and fixing the valuation in a gross sum was not a valid assessment. Such a question was considered by the Supreme Court of Oregon in the case of Strode v. Washer, heretofore cited. There an assessment was held to be a nullity which included several lots of land belonging to different owners in one valuation; and the court said "what the effect would be where the lots so assessed all belong to the same party, we express no opinion."

The effect of this irregularity does not seem to have been considered by the court below, and in view of the expression of the Supreme Court of the State, just quoted, withholding any opinion as to the effect of this defective mode of assessment, we do not feel disposed to base our decision upon it.

As, however, we think that the court below did not err in permitting the defendant to impugn the tax title by showing that the name of the owner was wrongly given in the delinquent tax roll, and in the notice and publication, and in holding that the sale was thereby invalidated, it follows that its judgment should be

Affirmed.

MR. JUSTICE BREWER did not sit in this case, nor take any part in its decision.