*

of uses, where the power is required by the donor to be executed through the instrumentality of a will, and

497

The law has not vested the Court of Chancery with the jurisdiction to approve or disapprove of the acts of the guardian, but that jurisdiction was vested in the Circuit Court, which ordered the sale. If chancery may interfere and dispense with one of the requirements of the statute, it may with another, and thus in its unlimited discretion, it may fritter away the whole statute. It is seriously claimed, that because the purchaser purchased in good faith, and paid the full value of the property to the guardian of the owners, that thereby an equity is raised in his favor and against them, which the court will enforce. Equities do not arise upon statutory acts without the volition of those against whom the equity is charged. Suppose this guardian, seeing that a case existed which would require the Circuit Court to order a sale of the infant's estate, and in ignorance of the law, but in all honesty, had sold the estate for its full value, without an order of the court, to a purchaser, who, in good faith, supposed he was getting a good title; in that case, the purchaser's equity would be just as strong as is the equity in this case, and, should we now hold that the purchaser here acquired an equitable title which should be enforced against the heir, it would be equally our duty, when the case supposed arises, to compel a conveyance to the purchaser, and then the entire statute would be gone. But the truth is, the purchaser at these statutory sales gets no imperfect equitable title which may be perfected in chancery; he gets the whole title which the infant had, or he gets no title whatever. Undoubtedly, if at the time of the sale, the infant had but an equitable title, and subsequently acquires the legal title, that equity will compel him to convey to the purchaser such subsequently acquired legal title, but that would be upon the ground that he acquired the legal title by reason of the equitable title which had been regularly sold, and that he took the legal title simply as trustee. In such a case equity could undoubtedly enforce the trust.

Nor has the complainant here the appearance of equity against the heirs which he supposes. The case does not show that the guardian appropriated the money which he received of the complainant to the support and education of the infants, or invested it in other estate for their benefit, or applied it any way to their use. It simply shows that he received it as guardian. Had the money been invested in other lands for the infants, it may be that it could be followed there by the complainant; and even if it were shown that the money had been applied to their support and education, there would be some reason for saying that this should affect their consciences, and require them to refund it after they became of age; but that question is not here, for it is not shown what the guardian did with the money. The complainant knew, or should have known, when he bought the land, that he got no title till the sale was reported to court and approved, and that it was his place to see that the guardian performed his duty in this regard, as in any other which was essential to the validity of his title. Suppose the guardian had omitted to make the deed, could he now be allowed to say that he supposed the guardian had performed his duty and done it, and ask this court to dispense with that essential act? The complainant was in a position to compel the guardian to make a report to the court, and thus enable that tribunal to inspect his proceedings, and see that the interests of the infants had not been

* 498 is executed by deed, in * which case equity will aid the defective execution of it, is not an exception to the gen

sacrificed while they were perfectly powerless in his hands, and incapable of thinking or knowing or doing any thing affecting their interests. All the rights of parties thus situated are reserved, and they are to be considered as opposing and protesting against every thing which is done affecting their interests. This is a special proceeding provided by the statute, by which the title to land of third persons is divested without their consent, and not only against their will, but that, too, when they are incapable of making an effort to protect themselves; and such being the case, it was the duty of the legislature to throw every check and safeguard around the proceeding to protect the rights of the infants from becoming a prey to avarice and dishonesty. This was done by requiring the court to supervise the whole proceedings, and if all was found right and fair, to approve them, until which time all the acts which had been done were merely preliminary, having in themselves no binding effect. It was the manifest policy of the law to make the court the special guardian of the infant, to see that he was not defrauded by his general guardian or others. This policy of the law must be upheld. The statute alone created the power to sell the land, and required that it should be exercised in a particular way to make it valid, and in no other way can it acquire validity. This sale and proceeding was either conformable to the law, or it was not. If the former, it conveyed a good title; if the latter, it was illegal, and nothing. The statute says the title might be transferred in a particular way, and if done in any other way, the statute gives it no sanction, and it is as void as if there were no statute on the subject. This is not a power created by a power of attorney or by will, where the court may aid a defective execution of the power, where it is necessary to carry into effect the intention of the donor of the power, whose interests were to be affected by its execution.

We are not without authority directly on this point. The case of Bright v. Boyd (1 Story, 478) is almost precisely like this in all its essential particulars. There an administrator had, in pursuance of a statute, been authorized by the probate court to sell land left by the deceased, for the payment of debts. The statute required, that previous to the sale, the administrator should file a bond with the probate court, approved by that court. Previous to the sale, a bond was executed, by sureties, and who were approved by the court, but the bond was not actually approved by the court and filed. The administrator advertised and sold the premises, in pursuance of the order of the court, for their full value, and executed a deed, &c., and the purchaser had made valuable improvements thereon. The heir recovered the premises in ejectment, for the reason that no bond had been filed by the administrator, and approved by the court; and the bill was filed, praying that the heirs might be decreed to pay the value of the improvements, or release to the purchaser. Story, J., after adverting to the decision at law, said: 'It is now argued, that however correct this doctrine may be at law, yet in a court of equity, the omission to give the bond within the stipulated time, ought not to be held a fatal defect, but it should be treated as an inadvertence, or accident, properly remediable in a court of equity. We do not think so. The mistake was a voluntary omission or neglect of duty, and in no just sense an accident. But if it were otherwise, it would be difficult, in the

eral rule; though the will is not executed as required by the statute of wills, equity relieves, because the deed takes effect under the instrument which creates the power, and not under the will; the maxim being, that every instrument made in execution of the power, refers to the instrument creating the power. The principle that equity must follow the * 499 law, and cannot supply any defect which would render a sale and conveyance void at law, for non-conformity with the statute, is peculiarly applicable to tax sales and conveyances, because of the fact, that they are regarded as titles stricti juris, derived under a naked statute authority. No instance is known of an attempt to make a tax title good by an appeal to a court of equity. If the reader desires to pursue this question further, he is referred to the authorities cited in the margin.1 (a) present case, to sustain the argument. This is not the case of the defective execution of a power created by the testator himself, but of a power created and regulated by statute. Now it is a well-settled doctrine, that although courts of equity may relieve against the defective execution of a power created by a party, yet they cannot relieve against the defective execution of a power created by law, or dispense with any of the formalities required thereby for its due execution, for otherwise the whole policy of the legislative enactments might be overturned. There may, perhaps, be exceptions to this rule; but if there be, the present case does not present any circumstances which ought to take it out of the general rule. Therefore, it seems to us, that the non-compliance with the statute prerequisites in the present case, is equally fatal in equity as it is in law.' It would be difficult to find upon any question a case more directly in point, and if it be the law, of which we have no doubt, it settles the case conclusively. The decree of the Circuit Court must be reversed, and the bill dismissed."

1 1 Story's Eq. secs. 96, 177, 178; Fonb. Eq. B. 1, C. 1, sec. 7; Earl of Darlington v. Pulteney, Cowper, 267.

(a) When a sheriff, in selling land for taxes, has neglected to affix a seal to his deed, a court of chancery will not correct the error. Altes v. Hinckler, 36 Ill. 265.

Where land was in fact sold at a tax sale in parcels, and not in bulk as stated in the deed, in a suit in equity to compel the execution of a new and valid deed according to the facts, relief was denied on the ground of inadequacy of consideration and want of equity. Harper v. Sexton, 22 Iowa, 442.

CHAPTER XXXV.

OF THE MODE OF PLEADING A TAX TITLE.

THE rules which govern the mode of pleading a title derived under a tax sale, will, of course, depend upon the form of action, the character of the defence, or nature of the controversy in which the question arises. In real actions, and actions of ejectment, brought by the party who claims the land under such a title, and in trespass quare clausum fregit, and actions upon the case in tort, instituted by him for an injury to the possession or inheritance, the general allegation of title will be sufficient, as in ordinary cases. In trespass, and cases prosecuted against him by the former owner, his title may be given in evidence under the general issue. But where he seeks, by mandamus, or bill in chancery, to coerce the execution of a tax deed, by the officer to whom the law has intrusted the power of making it; where he relies upon his title as a defence to an action at law, or suit in chancery; and in all cases, where a party to a suit founds his cause of action or ground of defence upon the existence of an outstanding tax title in a third person, the title must be specially alleged in the pleading of the party. This proposition will not be denied. But how shall this special allegation be framed? What particularity and certainty is required by the rules of pleading in such cases? Is the general allegation that the proceedings were "in due form of law," "in conformity with all the provisions of the statute in such case made and provided," "regular," or "legal," sufficient, or must the pleader set forth the proceedings under which the sale of the land took place, so that the court can see that the proceedings were in conformity with the require*501 ments * of law? Pleading is defined to be, "the state

ment of the facts which constitute a cause of action or ground of defence." Now, what facts constitute the cause of action or ground of defence, where a tax title is relied upon? Clearly, all of those which the law has declared shall exist, in order to consummate a complete and perfect title. Each independent act of the officers who have any thing to do with the proceedings, from the listing of the land for taxation, until the title is consummated by the execution and delivery of a deed, constitutes an essential link in the chain of title, and must be specially averred in the pleading. The rule requires that all of the facts upon which the legal sufficiency of the cause of action or ground of defence depends, shall be stated. The exceptions to this rule are, that facts of which the court will ex officio take notice, facts which the law presumes, and facts which come more properly from the opposite party, as being peculiarly within his knowledge, need not be stated in his pleading. Tested by the rule and exceptions, how stands the case with regard to the facts necessary to be stated in pleading a tax title? Courts will take judicial notice of the existence of other superior courts, the extent of their jurisdiction, and the course of proceedings therein; but they will not take notice of the jurisdiction of inferior courts, or the course of their proceedings. The pleader must aver and set forth such facts as will show that they had jurisdiction, and that their proceedings were regular; nor will the court take judicial notice of the authority of an officer to act in a given case, but the facts which establish the authority must be averred in pleading. The courts, as has already been shown, raise no presumption in behalf of an officer intrusted with the power to sell land for the non-payment of taxes, to cover any radical defect in his proceedings; it is not a case for presuming that, as a public officer, he has performed his duty by pursuing his authority; therefore, the facts upon which his authority depends must be set forth in pleading. Nor do the facts upon which the validity of the officer's proceedings depends, lie more properly within the knowledge of the former owner, for we have seen that these facts should be examined by the *502 purchaser, before he buys at a tax sale, and the evidence