CHAPTER XXXII. OF THE FORFEITURE OF LANDS TO THE STATE, WHERE THE TAXES HAVE NOT BEEN PAID. THE omission or neglect of a duty which the party binds himself to perform, or to the performance of which he is enjoined by the law, is, upon the breach or neglect thereof, called a forfeiture; that is, the advantages accruing from the performance of the thing are defeated and determined.1 It is a punishment annexed by law to some illegal act or negligence in the owner of lands, tenements, or hereditaments, whereby he loses all his interest therein, and they go to the party injured, as a recompense for the wrong which either he alone, or the public together with himself hath sustained.2 (a) These definitions include forfeitures of conditions, obligations, offices, and estates, and other penalties accruing in civil cases, or inflicted for transgressions or omissions of duty imposed by the criminal laws of the land. Forfeitures for crime have been abolished in this country. But the common-law rule in relation to the forfeiture of estates for breaches, or the non-performance of conditions annexed to them, those forfeitures arising upon an alienation of a greater estate than a tenant for life or for years, has in the land, and those for the commission of waste by the tenant of a less estate than a fee-simple, is of constant application in our system of jurisprudence. To these may be added such 1 Bacon, Abr., Tit. Forfeiture; Beard v. Smith, 6 Mon. 444. 2 2 Bl. Com. 267. (a) Under the Illinois statute, the assessor has no power to double the true valuation of an estate in consequence of fraud in the executor. Leper v. Pulsifer, 37 Ill. 110. 3 Beard v. Smith, 6 Mon. 444. forfeitures as are declared by statute, for the non-per* 460 formance of some duty * imposed upon the owner of an estate.1 It is a familiar principle, that a court of equity will not lend its aid to enforce a forfeiture, but, on the contrary, will relieve against them in many cases. Even a court of law does not favor a forfeiture, and requires strict proof of the act or omission upon which it is claimed. In many States, forfeitures for the neglect of the owner of an estate to list his land, or pay the tax assessed upon it, have been directed by the legislature. This class of forfeitures is based upon the principle that every owner holds his estate upon the implied condition that he will furnish a list of his taxable estate, and promptly pay his share of the common burdens assessed against the entire community; and if he omits to comply with the condition, and his estate is offered at public vendue, and no purchaser can be found for it, the title is transferred from the owner to the State, the latter being always ready to bid for the land, when no other bidder appears. The mode of declaring the forfeiture varies according to the caprice of each State. In some instances, the words of the statute are, that the owner shall" forfeit" his estate to the commonwealth for non-compliance with the duty or duties imposed upon him. In others, the law declares that the land of the negligent owner shall be stricken off to the State, or to the governor, for the use of the State. In all cases which have come under the observation of the writer, ample provision is made for a redemption, by the owner of the estate. It may be laid down as a principle of universal law, that in order to enforce these forfeitures, the courts require the same degree of strictness which is applied to ordinary tax sales, in order to divest the title of the owner. Where the land, instead of being struck off to the State as a bidder at the tax sale, is declared to be " forfeited to the State," or equivalent language is used, it is a serious question whether an inquisition is not necessary, in order to divest the title of the rightful proprietor and vest it in the State. It is a maxim of the common law, that the words "shall forfeit," vest in the king a simple right to enforce the forfeiture upon office found, 1 Beard v. Smith, 6 Mon. 430. and not the freehold indeed or in law. "These in- * 461 quests of office," says the learned author of the commentaries upon the laws of England, "were devised by law as an authentic means to give the king his right by solemn matter of record; without which he, in general, can neither take nor part from any thing. For it is a part of the liberties of England, and greatly for the safety of the subject, that the king may not enter upon and seize any man's possessions upon bare surmises, without the intervention of a jury."2 This reason is equally applicable to our government as to a monarchy; or rather, in a government founded upon the principles of liberty, the reason is stronger than in any other. Lord Coke says that in all statutes declaring forfeitures, "it is intended upon office found; incidents are ever supplied by intendment." The same doctrine is maintained in Dowtie's Case, and in Page's Case. And it was recognized and applied by the Supreme Court of the United States in Fairfax v. Hunter.6 The Virginia statute of 1790 provided, "that in case the tax upon any tract of land shall not be paid for the space of three years, the right to such land shall be lost, forfeited, and vested in the commonwealth; and it shall be lawful for any person to acquire a title to such land so forfeited, in the manner prescribed for acquiring titles to waste and unappropriated lands in the act of 1785, c. 42." The manner of acquisition prescribed by the recited act, was by paying the purchase-money into the land-office, upon which a warrant was directed to issue in the name of the purchaser; under this warrant a location and survey was directed, and upon the return of the warrant and survey, a patent was to be issued to the locator. Infants, femes covert, and persons non compos, were allowed three years to redeem, and thus save the forfeiture. The law further required a listing of the land, a return of the 462 list, and a publication of the delinquency of the owner. * * In Kinney v. Beverely, the latter, who was the original pro 1 Dwarris' Stat. 743; Plowd. 486. 3 2 Inst. 221. 55 Coke, 52. 7 2 Hen. & Munf. 531. 2 3 Bl. Com. 259. 4 3 Coke, 10. prietor of the land, under a grant from the Commonwealth, brought an action of ejectment against Kinney, who claimed under a warrant and survey, and patent of land forfeited under the above-recited act of 1785. A special verdict was found, that the land had never been valued by the listers, that the list had never been returned, and that the delinquency of the owner was not advertised. Nor did it appear that the title had been vested in the Commonwealth by means of an inquisition, or in any other manner, except by force of the statute. All of the judges agreed upon a judgment in favor of Beverley, because, 1. The land was not valued; 2. The list was never returned; and, 3. The land was not advertised. But Tucker went further, and held an inquisition necessary, saying, "I have always considered that, from the period of our revolution, the Commonwealth succeeded to the political character of the king, in all cases whatsoever; and that its rights, privileges, and remedies were to be, in general, ascertained by the political character of the king, where the same were not controlled or enlarged by the express terms of the constitution, or the clear and definite provisions of some statute of the Commonwealth. On this ground I have held, that the Commonwealth could neither take nor grant any thing, except by matter of record." (He then cites Blackstone and Coke, and proceeds.) "The conclusion which irresistibly presses itself upon my judgment is, that previous to any grant or location thereof, there must be some further inquiry made; and as at present advised, that this must be done, either by an inquest of office, or some other mode to be provided for by the legislature, whereby the certainty of the lands may be shown, and the seisin, as well as the right vested in the Commonwealth. A further reason in support of this opinion arises from that principle of moral justice, recognized by Magna Charta in England, and by our * 463 constitution, whereby * it is declared that no man shall be disseised of his freehold or be condemned, but by the lawful judgment of his peers, or by the law of the land; the meaning and intention of which is, that no man shall be deprived of his property without being first heard in his own defence. In the case before us, the plaintiff has been disseised of his lands, and they have been granted over to a third person, without notice or warning whatsoever." 1 The same doctrine was maintained in Robinson v. Huff.2 The facts sufficiently appear in the following opinion of the court: "This is an ejectment, in which the lessor of the plaintiff below gave in evidence a title derived from the Commonwealth. The defendant then gave in evidence a patent of elder date, granted to Banks and Claiborne, who were strangers to this controversy, covering the contested premises. To avoid the effect of this, the plaintiff produced and read a certified extract from the book of the auditor of public accounts, showing that the claim of Banks and Claiborne was sold to the State for taxes, in 1806, and never redeemed. The court below, then at the instance of the plaintiff, instructed the jury, that the legal title to the land claimed by Banks and Claiborne was vested in the Commonwealth by the said sale, and that the elder legal title to the land in controversy was of course in the lessors of the plaintiff. The defendant below excepted to this instruction, and a verdict and judgment having been rendered against him, he has appealed to this court, and relies on this instruction as error. It may be a question of some moment, how far the purchase of Banks and Claiborne by the government could receive or infuse validity into the title * 464 of the lessor of the plaintiff, and whether the right of entry would not pass exclusively to the State. But we do not suppose it necessary to inquire into that question now; for we are of opinion, that the sale for taxes to the State did not pass the legal title. It is a well-known rule of the common law, that no freehold might be given to the king, nor derived from him, but by matter of record.3 * 1 Upon this point, Judge Roane gave a contrary opinion, making use of the common argument in favor of summary proceedings in collecting the revenue. He says, "I cannot for a moment doubt the power of the legislature to pass the law in question; nor can I think that, under the influence of that power, and the actual provisions contained in that law, there is any pretence to say, the locations under the act must be preceded by inquisitions of office. Such a construction would defeat the great end and object of our acts, in this particular; would greatly affect our revenue; and can only gain color by giving to the principles of the common law, in respect of inquisitions, a supremacy over the positive acts of the legislature." 2 3 Lit. 38. 3 2 Bl. Com. 344. |