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1820.

M.Clung

Rose.

For the purpose of invalidating this deed, he offered in evidence certain records of the County Court of Rhea, showing that the land had been sold for the non-payment of taxes, had been conveyed by the sheriff to the purchaser, and by the purchaser to the defendant. The regularity of this sale, and the validity of the deeds made in consequence of it, were contested, and the Court determined against their validity; to which opinion of the Court the counsel for the defendant excepted.

In the year 1803, the legislature of Tennessee passed an act, subjecting all lands to which the ladian claim was extinguished, held by deed, &c. to taxes. The 13th section of the act provides, that “in case there shall not be any goods or chattels on which the sheriff can distress for public taxes, &c. he shall report the same to the Court of his county." The Court is then directed to make out certain lists, and to direct certain publications, after which the Court may enter up judgment, on which execution may issue, and the lands be sold. In 1807, the legislature passed a supplementary act, the 3d section of which enacts, that it shall be the duty of the collector of taxes in each county, after the 1st day of January in each year, to make report to the Court in writing, “ of all such tracts or parts of tracts of land as have, from his own knowledge, or from the information of others, not been returned for taxation for the said preceding year; and it shall be the duty of the said Court to cause said report to be recorded in books to be kept for that purpose, and to cause judgment to be entered up for double the tax due on the

1820.

M'Clung

Ross.

said land, not returned for taxation, and so unpaid, and shall order the same to be sold,” &c.

In January, 1810, Miller Francis, collector of taxes in Rhea county for the year 1809, reported to the Court, that the following lands were not listed for taxation for the year 1809, to wit, &c. Then follows a list of several tracts of land, among which is the tract in question, reported three several times in the following terms :

Reputed oponers. Quantity. No. of title. Date of title. Location. Tar. Stockly Donals on,

5000 209 20 Sept. 1787. Pleasant, &e. S. Donalson and John Hackett, 5000 1347 22 Feb. 1795. David Ross,

5000 209 20 Sept. 1787.

Upon the return of which report the Court entered up a judgment for the sale of the said lands, and after the publication required by law, an execution was directed, under which the said land was sold as being three distinct tracts; when Robert Farquharson became the purchaser of the tracts reported to belong to Stockly Donalson, and to Stockly Donalson and John Hackett; and the agent of David Ross became the purchaser of the tract reported to belong to David Ross.

A question of considerable difficulty arises on the In the summa. validity of these sales. Under the act of 1803, the for the sale of power of the Court to render judgment in such cases nessee, for the for the sale of land, is founded on there being no per- taxes, every sonal property from which the tax might be made. I give juris The jurisdiction of the Court depends on that fact. appear in the Whether it is necessary that its existence should be shown in the judgment of the Court, is a question on which the State Courts appear to have decided differently at different times. But the last, and we

of

Court,

record

1990.

M.Cluog

Ross.

believe, the correct opinion, reported in 5 Haywood, 394. establishes the general principle, that in these summary proceedings, every fact which is necessary to give jurisdiction, ought to appear in the record of the Court. The act of 1807 directs the Court to proceed on the return of the collector, that the taxes of the preceding year are unpaid, or that the land has not been returned for taxation. Whether this act, which is supplemental to that of 1803, authorizes the Court'to give judgment for the sale of land, although there may be personal property in the county sufficient to pay the tax; or only varies the mode of proceeding against the land, without vary. ing the circumstances under which it may become liable, is a question which does not appear to have been decided in Tennessee, and which it is unnecessary to decide in this case, because we are all of opinion, that if the sale was valid, Ross is to be considered as the purchaser of his own title, and Farquharson as the purchaser of the title of Donalson and Hackett. The objection to this is, that the agent of Ross stood by, and permitted Farquharson to bid. But this objection implies a knowledge on the part of Ross, or his agent, that the land sold in the name of Donalson and Hackett, was his land. There is no evidence that either of them possessed this knowledge; nor are the circumstances such as would justify its being presumed. Were the Court required to presume fraud on this occasion, it is not to Ross, or to his agent, that the evidence on this particular part of the transaction would justify us in ascribing it. We think, then, that the defendants in the Court be

1820.

M-Clung

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Ross.

the statute of

Tennessee.

low, acquired no title to Ross's land by the sheriff's sale or deeds. We think, then, that there was no error in rejecting these deeds.

The defendant, also, claimed the benefit of the Construction of act of limitations, which makes seven year's peace- limitations of able and adverse possession a complete bar to the action.

In support of this claim, he relied on the testimony of John Meriott, who swore, that in pursuance of an agreement between him and John Hackett, who informed him that the land belonged to him, Hackett,

a The statute of Tennessee of 1797, c. 47., made to settle the true construction of the statute of limitations of North Carolina of 1715, provides, “ that in all cases, whenever any person, or persons, shall have had seven years' peaceable possession of any land, by virtue of a grant, or deed of conveyance founded upon a grant, and no legal claim by suit in law, by such, set up to said land, within the above term, that then, and in that case, the person or persons, so holding possession as aforesaid, shall be entitled to hold possession, in preference to all other claimants, such quantity of land as shall be specified in bis, or their said grant, or deed of conveyance founded on a grant as aforesaid." The act then proceeds to bar the claim of those who shall neglect, for the term of seven years, to avail themselves of any title they may have.

Under the statute of North Carolina, it had been delermined by the Courts of that State, that it afforded protection to those only who held by colour of title. And under the act of Tennessee, it is settled by the decisions of the local Courts, and of this Court, that it does not, like other statutes of limitation, protect a mere naked possession, but that its operation is to be limited to a possession of seven years, acquired and held under a grant or a deed founded on a grant. Patton's Lessee v. Easton, ante, vol. I. p. 476.

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1820.

M'Clung

Koss.

and the defendant, M-Clung, he took possession of the land in March, 1807, built a house, and cleared seven or eight acres, and retained possession of the land until the contract was rescinded. By a contract with M-Clung, he agreed to hold possession for M-Clung and Hackett. It also appeared in evidence that Meriott remained in possession until the autumn of 1803, when he surrendered it to Hackett, who, in the succeeding spring, moved with his family into the house Meriott had built, where he resided until his death, since which event it has been occupied by his widow and family.

The plaintiff then proved, that in 1795, John Hackett showed this agent of Ross, the land in controversy as the land sold to him; that in the year 1813, the same agent agreed to lease a part of the land to one Cox, who, in pursuance of the said agreement entered thereon, and built a small house, but being threatened by M'Clung with a suit, he abandoned it.

Upon this testimony, the defendant in the Circuit Court moved the Court to charge the jury, 1st. That if they believed the possession taken by Meriott to have been on behalf of Hackett and M-Clung, and that Hackett continued said possession for himself and M'Clung, for seven years before suit, it was adverse, and would bar the claim of the lessor of the plaintiff. And farther, that the possession of the land taken by Cox, as tenant of Ross, would not suspend the statute of limitations, and that the effect of the said statute could be defeated only by suit at law.

This instruction the judge refused to give, but did

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