CHAPTER XXIII.

OF VARIANCES BETWEEN DIFFERENT DOCUMENTS AND RECORDS RELATING TO THE PROCEEDINGS.

THE validity of a tax title depending upon the regularity of all the proceedings, each document or record, in the series of acts necessary to the consummation of the title, must not only be legal on its face, but correspond with the preceding one upon which it is based, in all essential particulars. The proceedings are, in one sense, an entirety, and must be consistent throughout. This is requisite, not only with a view to the legal identification of the document or record, but the power of sale and conveyance in a great measure depends upon such consistency. The assessment is the incipient act in the acquisition of title, and all of the subsequent proceedings are based upon it; each act in the series must, therefore, not only conform to the assessment, but correspond with its own immediate antecedent, in every thing which is essential to its legal identity. Any material and substantial variance between the document or record in question, and those which preceded it in point of time, is fatal to its validity; while trifling errors and omissions in matters of form, which do not affect the power of the officer, nor destroy the identity of the document or record as a part of the entire proceedings, may be disregarded.1 This is the only true rule to adopt. When it is considered, that all human affairs and dealings are connected together by innumerable links and circumstances, forming one vast context, without any chasm or interruption, and undistinguished by the artificial boundaries and definitions of right and wrong *393 prescribed by the law, it is, in the nature of things, im

1 Pitkin v. Yaw, 13 Ill. 251.

possible that a transaction, detailed in records and documents, can be identical with the facts which actually transpired, if the record or document, relied upon as proof, vary from the facts in the slightest particular, be the variance, in its own nature, ever so insignificant. It is easy, therefore, to see, that to require this, as it were, natural and absolute identity between the fact and the proof, in all matters of detail and form, would be, at the least, highly inconvenient, if not wholly impracticable. Hence it is, that an artificial and legal identity, as contradistinguished from a natural identity, must be resorted to as the proper test of variance between different parts of an entire transaction. This is the philosophical ground upon which the doctrine of variance, between the pleadings and evidence in a cause, is based. There the strict rule is, that the allegations and proofs must correspond. A party cannot be permitted to allege upon the record, one cause of action or ground of defence, and prove another, because it would operate as a surprise upon the adverse party. But this rule is modified by another, that it is sufficient to prove the substance of the issue. In relation to written instruments, the rule is probably more strict. There, every descriptive averment must be strictly proven; but this rule, too, is qualified by the doctrine of idem sonans, surplusage and immateriality. The principle to be extracted from the rules of pleading and evidence, in relation to variances is, that the legal identity of the instrument in question is the only test. The rule and the reasons upon which it is founded are equally applicable to variances between different documents relating to the sale of land for taxes. But on the other hand, where the variance affects the question of power, or destroys the legal identity of the document or record, it furnishes a decisive objection to a title derived under it. Many such variances have been noticed in the preceding chapters.

* 394

*In Fitch v. Casey,2 the land against which the proceeding was had, was a town lot, sixty feet front by one hundred and forty deep. The west fifth of the lot was assessed, the west two-fifths were returned as delinquent, the west third 2 2 G. Greene, 300.

1 Starkie's Ev. part 4, pp. 1526, 1527.

was advertised for sale, the west two-fifths sold, and the tax deed conveyed the west two-fifths. The sale was held void. Kinney, J.: “These variances we think sufficient to vitiate the entire sale, and defeat the collector's deed. The objections are of a serious character, and the evidence shows a manifest violation of some of the most important provisions of the statute. Two-fifths of the lot were sold and a deed made, when but one-fifth was assessed for taxes. The officer sold a part on which no tax was levied, and therefore on it no tax encumbrance existed. The west third only was advertised, and yet the west two-fifths were sold. A portion of the lot was sold, without the previous notice required by the statute having been given. These discrepancies and omissions are fatal to the validity of the sale, and hence no title passed to the purchaser." In Indiana, a variance in the description of the land, between the delinquent list and the judgment, was held fatal.1

In Smith v. Bodfish,2 the deed recited the levy of a tax of one cent and four mills per acre on a township containing 23,414 acres, amounting to $923.00. The record of the county commissioners showed a tax of eight cents and two mills per acre, amounting to $1,920.00. In the absence of any explanation, the sale was held void, because of the variance in the amount of the tax. The court remarked, that if the aggregate amount of the tax due upon the land had been reduced from the amount named in the levy to that recited in the deed, by a portion of the owners of the township paying their share of the tax, which was probably the case, this fact should have been recited in the deed, or proved by the party claiming under the tax sale. Where the land was listed and assessed in * the name of Allan Gillespie and James Gaily, and advertised as the property of Charles Gillespie, the variance was held fatal. (a) Under the act of Congress authorizing a sale of the land of delinquent tax-payers, a

1 Smith v. State, 5 Blackf. 65.

3 Watt v. Gilmore, 2 Yeates, 330.

2 27 Me. 289.

*

395

(a) The assessment of land for taxes, and the advertisement and sale of the land for the non-payment of the taxes must be in the same name, whether of the true owner or others or unknown owners. Bettison v. Budd, 21 Ark. 578.

parcel of land was listed in the name of John Hood, and described as a tract containing 30,000 acres: the deed recited a sale of, and conveyed 30,000 acres. It appeared, however, that Hood was the owner by patent of a 15,000 acre tract alone. The court held the sale void upon the ground of the variance in the quantity, but intimated an opinion, that if the parcel of land was identified by oral evidence, the sale might be sustained.1 Where the judgment is against eight lots, and the deed recites a sale of two only, the variance renders the sale void.2 The judgment must be treated as void, or else the eight lots regarded as an entire tract, and sold accordingly. The proceeding must have some consistency about it. The same doctrine was maintained in Ohio, where nine lots were assessed together, and each were sold and conveyed separately.3 So where the tax judgment is for ninety-nine cents, and the precept recites a judgment for one dollar and twenty-five cents, the variance is material and fatal.4

1 Hood v. Mathers, 2 A. K. Marsh. 556. 3 Wiley v. Scoville, 9 Ohio, 43.

2 Pitkin v. Yaw, 13 Ill. 251.

4 Pitkin v. Yaw, ub. sup.

CHAPTER XXIV.

OF SALES ACTUALLY AND CONSTRUCTIVELY FRAUDULENT.

Ir has been already remarked, that the validity of a tax sale depends, not only upon the authority of the officer to sell, but on the fairness of the transaction. The maxim is, that fraud vitiates every thing. Contracts of whatsoever dignity, if tainted with fraud, are void at law and in equity. By it, the most solemn proceedings of courts of justice are avoided. And we are informed by high authority, that even an act of parliament, conceived in fraud, may be declared a nullity. There is nothing in the nature of tax sales, which exempts them from the operation of this general maxim. On the contrary, a more rigid scrutiny into their fairness is demanded, because of the gross inadequacy of the price usually paid at such sales, and the great inducements held out for the perpetration of fraud in the conduct of them. Positive fraud occasionally infects these sales. Instances have occurred where the collector and purchaser have combined to defraud the owner by a sale and division of the spoil, where the taxes were in fact paid by the owner. Also, where an agent intrusted with funds to pay the taxes, violated his trust, and by a similar arrangement with the purchaser, permitted a sale. These, and positive frauds of a similar character, of course render the sale void. (a)

Though positive frauds sometimes occur, the most numerous kind are those usually denominated constructive; or that class

(a) Where the officer conducting a tax sale agrees with the purchasers to receive a portion only of the taxes due at the sale, such agreement is illegal, and a sale under the agreement is also illegal. Conway v. Cable, 37 Ill. 82. Such a sale is not rendered valid by a subsequent law declaring the agreement and sale valid and binding. Ibid.