required to convey to the purchaser, according to the metes and bounds of the survey thus made and returned.1 Where a conveyance is made of a certain number of acres, without locating it in any particular part of the tract, the conveyance confers no election upon the grantee to locate the quantity purchased, but the deed must be held void for uncertainty.2 [Thus, a deed of "10 acres in lot 26, in the 11th range, in the town of Columbia," is void for uncertainty.3] (a) The present statute of Illinois provides, that when a less quantity than a whole tract shall be sold, the part purchased shall be located on the east side of the tract. In Spellman v. Curtenius, the description of the land offered for sale was: S. W. and S. E. 9, T. 8, N. R. 8 E., and the sale was of one acre off the east side of the two parcels; the two quarters were fractional, ran to a point on the east, and therefore, strictly speaking, had no eastern side. By the court: "The intention of the law is, where less than the whole tract is sold for taxes, that the quantity sold shall be taken from the eastern part of the tract, and a line is to be drawn due north and south, far enough west of the most eastern point of the tract of land sold, to make the requisite quantity. The law must have a practical effect, and because a tract of land does not happen to be in a form, so as to have, strictly speaking, an east side, it is not to be presumed the legislature intended such tract to be exempt from this general provision of the revenue law. To give it such a construction, would be emphatically sticking in the bark." 1 Currie v. Fowler, 5 J. J. Marsh. 145; Jones v. Gibson, 2 Taylor (N. C.), 41. 2 Erwin v. Helm, 13 Serg. & Rawle, 151; Haven v. Cram, 1 N. H. 93; Jackson v. De Lancy, 11 Johns. 373; s. c. 13 Johns. 551; Jackson v. Rosevelt, 13 Johns. 97. The opposite doctrine is asserted in Coxe v. Blanden, 1 Watts, 533; but it is so utterly repugnant to the general principles of law, that it cannot be sustained. 3 Harvey v. Mitchell, 11 Foster, 575. (a) If the description of the land assessed is definite and accurate, and is inserted in the tax deed, and the purchaser at the sale buys a portion of it, such description in the tax deed of the portion sold as will enable its boundaries to be determined by extrinsic evidence, applying the description in the deed to the land, is sufficient. Brunn v. Murphy, 29 Cal. 326. 4 12 III. 409. * 357 * But upon the same identical state of facts, the taxdeed was held void, in Ballance v. Forsyth.1 McLean, J., in delivering the opinion of the court, said, "In these two fractional sections, there appear to have been about 150 acres. It is not said in what form the acre is to be surveyed. Certainty in such a case is necessary to make the sale valid, for on the form of the acre its value may chiefly depend. And there is nothing on the face of the deed, or in the proceedings previous to the sale, which supplies this defect." It may be added, that the same want of specific locality of the land sold, which would render void the anterior proceedings, will also establish the invalidity of the deed. 1 13 How. U. S. 18. CHAPTER XXI. OF THE AMENDMENT OF THE PROCEEDINGS. IT may be laid down as a general rule, that the power to correct an error committed in the progress of a proceeding exclusively belongs to courts of justice, and has no application whatever to the proceedings of ministerial officers. The common law, independently of any statutory provision upon the subject, recognizes the power of the courts in all cases in furtherance of justice, to amend their proceedings while in paper; that is, until the judgment is signed and perfected, by its record and that of the anterior proceeding; but no amendment was allowable, according to the strict rules of the common law, after the ending of the term in which the judgment was pronounced. Prior to that time, the proceedings were regarded as in fieri only, and consequently subject to the control of the court. But by the English and American statutes of amendment and jeofail, the power of the court to amend the record of their proceedings has been greatly enlarged, and amendments may now be made where the justice of the case requires it, after a motion in arrest of judgment, upon writ of error, and even after execution has been issued, executed, and returned. This power of amendment belongs to superior courts of record alone. No inferior court possesses it. No ministerial officer is permitted, according to the principles of the common law, to exercise such a power, where the rights of third persons are concerned, for the simple reason that he possesses no legislative or judicial power. To the latter departments of governmen the power of amendment alone attaches. The execu359 tive officers of the law act at their peril in every instance, where they are intrusted with a power over the * rights of the citizen, and are not under the supervisory control of some court of record, touching the regularity of their proceedings. Besides, no amendment is ever permitted in any case, where the rights of parties in interest are to be affected, except upon notice; and notice is required in judicial proceedings alone. The acts of ministerial officers are to be tested by the law which authorized them. When the act is completed their power is functus officio, and if in the record, return, or other evidence of their acts, they have failed to conform to the requisitions of the law of the land, or to state the facts as they actually transpired, the error cannot be obviated by an amendment, because their power over the subject is exhausted. By the record, as originally made, their acts must stand or fall. (a) Upon these principles, it is impossible to sustain a power in the officer who sells land for the non-payment of taxes, or in any officer connected with the proceedings to amend the record of their acts after they have been made. In Blight v. Banks,1 the return of the register showed a sale of 1,900 acres, while the certificate of the sale called for 4,900 acres ; afterwards, the return which had been recorded in the auditor's office, was altered by. the auditor to correspond with the certificate. The proceedings were held void. By the court: "As the entry and return of the sale by the register, and the record in the auditor's office is kept in the custody of the officers of the law, and the certificate is kept by the purchaser, and operates as a mere memorandum directory to the surveyor, and has no validity in passing the title, we concede the preference to the record, and conceive it ought to prevail as fixing the true quantity. And although the return of the register, and record of the auditor, have since been changed by the auditor, to conform to the certificate, yet this change was not authorized, and we cannot deem (a) So an uncertain description in a tax deed cannot be amended after the sale by the collector. Roberts v. Chan Tin Pen, 23 Cal. 259. Where a tax roll showed an error on its face of ten cents in the aggregate amount of tax carried out opposite a certain parcel of land, which error the county treasurer corrected before sale, it was held that as this did not injure the owner it must be disregarded. Case v. Dean, 16 Mich. 12. 1 6 Mon. 206. the sale valid for more than 1,900 acres." The same question was decided in Blight v. Atwell.1 * 360 * The whole doctrine of amendment was discussed, and the power sustained, in Gibson v. Bailey.2 The facts were, that the return of the posting up of the warrant for the town meeting, at which the tax was levied and the officers elected, was illegal. It did not appear, from the return, when the warrant was posted up, nor that it was posted at a public place. Nor did it appear upon the face of the town records that the collector took the oath of office prescribed by law. A motion was made to permit the record and return to be amended. By the court: "It has already been settled that the record of towns may be amended to conform to the truth of the fact. The amendment must be made by the person in office at the time. The form in which such amendments are to be made, has never yet been settled. It will be very dangerous to sanction alterations of the books themselves, by erasures and interlineations. And we are of the opinion that they should be made only upon evidence showing the truth of the facts, and then, by drawing out in form the amendment which the facts authorize. The amendment, with the order under which it is made, may then be annexed to the books where the original is recorded, so that the whole matter will appear; and in furnishing copies, the original and amendment should both be furnished. But it is objected by the demandant, that no amendment ought to be made to her prejudice. That when she purchased, these defects in the vendue title were apparent; and that she must be presumed to have purchased with knowledge that the title was defective. The general rule is, that amendments of records are made with a saving of the rights of third persons, acquired since the existence of the defect. To apply this rule, to all cases of defects in sales of land for taxes, would, in effect, be very nearly denying a right to amend; as the owner would attempt to defeat any amendment, by conveying to some friend, who would bring a suit in his behalf. It would, at least, be necessary to confine the application of the principle to cases where the land had been actually conveyed bona fide. But |