and the sale held void. Ruffin, C. J.: "It seems to us * 247 that * this provision is not merely directory, but that it is to be observed by the sheriff as a part of his duty, and as far as respects the making of the return and having it recorded, it is essential to his authority to sell the land. It was known that notice by advertisement was a very uncertain method of informing the owner, and especially of unlisted property, that his land was to be sold; and moreover, that on account of the difficulty of a purchaser proving the advertisement at remote periods, and of the necessity, nevertheless, of supporting fair purchases, the courts had held,1 that sales made without advertisement, and without the knowledge of the owner, should stand, notwithstanding the prejudice that might arise to the owner. The intention of the act of 1819 was to provide a more certain or probable notice to the owner, of the intended sale of his land, and of the reason therefor, by requiring it to be given in open court, at the term next preceding the sale, and to be recorded so that the rumor thereof, at least, might reach him, and that upon investigation he might find at a known place, a permanent and certain evidence of the truth of the matter. So, too, the bidders cannot be deceived by any false report, as they can respecting advertising in the country, or in a newspaper, as the evidence is of record, and at home, and if they choose to look, they must know whether the sheriff has done his duty by the owner or not. If he has not, his sale ought not to pass the title more than if it was by private contract, or was not made at the court-house, or on a wrong day of the week; in all which cases the wrongful conduct of the officer must be known to the bidder, and therefore his purchase ought not to stand. Indeed, the proceeding, directed by the act of 1819, is very much in the nature of a judgment, and a purchaser can as readily search for and find the one of record as the other, and therefore there is as little reason to dispense with the one as the other. The legislature meant to give the citizen an effectual protection against surprise in the sale of his land for taxes, but at the same time to do so without exposing bidders to the danger of paying their * 248 money, * and not getting the benefit of their purchases, 1 Ante, pp. 216, 217.

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provided they would take the reasonable and not inconvenient precaution, of availing themselves of the means provided for informing themselves, whether the sheriff had a right to sell or not. No person can be hurt by this construction, but one who wilfully keeps his eyes shut against the light the law supplies to him. We think the sale to the lessor of the plaintiff was therefore radically defective, and passed no title."

This was a peculiar statute, and its provisions, in one respect, somewhat analogous to the proclamations of a fine, under the old English statute; and the fact that the court required a strict compliance with its provisions, is one of the very strongest illustrations of the degree of strictness, exacted in the giving of every notice of sale, which the legislature have seen proper to prescribe in this class of cases. Proof of the advertisement depends upon the same general principles which relate to the other prerequisites at the law. The onus probandi rests upon the purchaser at the tax sale, or those claiming under him.1 The deed is not primâ facie evidence that the sale was duly advertised.2 Where the law requires the advertisement to be recorded, the record alone can be resorted to for the purpose of determining its existence and sufficiency. Parol evidence is inadmissible to supply any defect in the record, or to explain any uncertainties that may exist in it. And the courts are strict in requiring a rigid adherence to the requisitions of the law, as to the contents of the record; it must conform to the statute in all respects.

In those States where the law requires the advertisement to be recorded, this strictness is maintained, upon the ground that the evident object of the law is to perpetuate the evidence of the notice by matter of record, for the common benefit of the purchaser and former owner; that the introduction of parol evidence in aid of the record thus required to be made, would defeat the policy of the law. The statute of * 249 Illinois requires the certificate of publication to be

1 Ante, chapter 3.

2 Garrett v. Wiggins, 1 Scam. 335; Kinney v. Beverley, 2 Hen. & Munf. 531. See Elliott v. Eddins, 24 Ala. 508.

3 Culver v. Hayden, 1 Vt. 359; Coit v. Wells, 2 Vt. 318; Clark v. Tucker, 6 Vt. 181; Spear v. Ditty, 9 Vt. 282; Isaacs v. Shattuck, 12 Vt. 668; Carpenter

recorded,1 and the question has several times been raised upon the circuit, and in the Supreme Court, as to the validity of the proceedings where the clerk has omitted his duty in this respect; but the cases have been determined upon other points, so that it is still an open question in that State. The manifest object of the statute is, to show upon the face of the record the jurisdiction of the court, and to perpetuate the evidence that the sale was duly advertised. It concerns the former owner and the purchaser at the tax sale, and it would seem upon principle, and authority, that such a requirement can in no sense be regarded as merely directory to the clerk; but that it is one of those peremptory provisions which cannot be dispensed with without invalidating the entire proceedings-defeating the jurisdiction of the court, and the power of the collector to sell the land. (a)

Ordinarily, no presumption will be indulged in, for the purpose of supplying the omission of proof in relation to the publication of the advertisement.2 Though in support of an ancient possession, it may be permitted. This, however, will be examined more at large hereafter. But the law is not only well settled, but apparent to every one, that no presumption can be indulged in to supply a defect which appears upon the face of the advertisement.3 It may be stated as a general rule, that where an advertisement is illegal in any respect, the consent of the owner, having notice of the irregularity, cannot confer authority upon the officer to proceed with the sale. He v. Sawyer, 17 Vt. 121; Judevine v. Jackson, 18 Vt. 470; Langdon v. Poor, 20 Vt. 13; Taylor v. French, 19 Vt. 49; Kellogg v. McLaughlin, 8 Ohio, 114. 1 Ante, p. 194, sec. 27.

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(a) It need not appear of record that the person who signed the certificate of publication was the publisher of the newspaper in which the advertisement appeared; that fact will be presumed to have been proved before judgment for a sale was ordered. Dukes v. Rowley, 24 Ill. 210.

Where the statute required the town clerk to give notice at town meeting that lists of the land advertised for sale by the comptroller for unpaid taxes had been deposited in his office, it was held that this was a directory requirement, and that if the prerequisites to the comptroller's power to advertise existed, the omission of the clerk to give such notice would not invalidate a sale. Pierce v. Hall, 41 Barb. 142. See also Noland v. Busby, 28 Ind. 154.

2 Allen v. Smith, 1 Leigh, 231.

3 Farrar v. Eastman, 1 Fairf. 191; Porter v. Whitney, 1 Greenl. 306.

derives his power from the law-and not from the owner of the land-and he must strictly conform to * 250 all its requisitions. The date of the advertisement is prima facie evidence as to the time when it was made and published. But where a notice of sale, and the paper itself which contained it, were dated in 1836 instead of 1837, and parol evidence was offered to prove the mistake, the evidence was held incompetent. The reasoning in support of this decision of the court, has already been given.4

1 Scales v. Avis, 12 Ala. 617.

3 4 Scam. 81.

2 Langdon v. Poor, 20 Vt. 13. 4 Ante, p. 238.

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CHAPTER XIII.

OF THE AUTHORITY OF THE OFFICER TO SELL.

THE power of sale does not attach until every prerequisite of the law has been complied with.1 The regularity of the anterior proceedings is the basis upon which it rests. Those proceedings must be completed and perfected, before the authority of the officer to sell the land of the delinquent, can be regarded as consummated. The land must have been duly listed, valued, and taxed the assessment roll placed in the hands of the proper officer, with authority to collect the tax-the tax demanded-all collateral remedies for the collection of the tax exhausted the delinquent list returned-a judgment rendered where judicial proceedings intervene - the necessary precept, warrant, or other authority, delivered to the officer intrusted with the power of sale- and the sale advertised in due form of law-before a sale can be made. In a word, every act which can be regarded as a condition precedent to a valid sale, must precede the execution of the power in question; otherwise, there is no authority to sell, and the whole proceeding will be treated as a nullity.2

Whether a special authority, directly commanding a sale of the lands embraced in the delinquent list, is essential, where all of the previous proceedings are regular, depends upon the peculiar legislation of each State. In some instances *252 the officer * derives his power of sale from the law itself, which is his warrant, commanding him, without the inter

1 Minor v. Natchez, 4 Smedes & M. 627, 628.

2 Lessee of Holt's Heirs v. Hemphill's Heirs, 3 Ham. 232; s. c. 1-4 Ohio Cond. 551; Bishop v. Lovan, 4 B. Mon. 116; Garrett v. White, 3 Ired. Eq. 131.