PECK V. CAVELL, JR.

it does not appear from the transcripts that any execution was ever properly issued in these cases, inasmuch as the evidence does not show that the executions were issued at the request of the plaintiffs in the judgment. The transcripts only state when and to what officer the executions were issued; but as these are the only facts which the statute requires to be entered on the docket in relation thereto (Comp. L. § 3890, clause 12), and as the transcript is to be a correct copy from the docket (Comp. L. § 3786), we think the objection not tenable. If the Justice enters upon the docket in regard to his own proceedings all that the statute requires, the ordinary presumption in favor of the correctness of official action must support the proceedings.

It is also objected that the executions issued by the justice were returned prematurely. Both appear to have been returned on the sixtieth day after date; and the plaintiff claims that he was entitled to the whole of the sixtieth day in which to make payment. The sixtieth day, however, was the return day; and although the statute allows the officer to make the return at any time within five days thereafter, without subjecting himself to liability (Comp. L. § 3827), he may also make return on the return day; and a strict obedience to his process would require him to do so. One of the executions, however, was returned on Sunday; and that fact is fatal to the proceedings on the transcript based upon it.

But there is another fatal objection to both of the transcripts, and to all proceedings under them. It does not appear that either of the transcripts were certified by the Justice, or that any such affidavit was attached thereto as was required by the statute. A special statutory proceeding of this description which is to divest a man of his title in invitum must be in strict compliance with the statute in all those particulars designed for the protection of the defendant. The certificate to the transcript and the affidavit

CASE V. DEAN ET AL.

of amount due are jurisdictional facts, without which there is no authority to file a transcript. The original transcripts were not offered in evidence in this case, but only the docket entry thereof in the office of the clerk of the Circuit Court; and this entry did not show either a certificate or an affidavit. Without inquiring whether this would have been a sufficient docketing of the judgments had the transcripts beer in due form, it is clear that it can constitute no authority for an execution unless it appears that there was a transcript duly certified, and an affidavit of the amount due, without which there is no authority for docketing the judgment in the Circuit Court at all. As objection was taken at the time that the transcripts themselves were the proper evidence, the attention of the defendant was called to the defect, so that he had an opportunity to put the transcripts in evidence if they were in compliance with the statute. As they were not offered, we can presume nothing in their favor.

The judgment must be reversed, with costs, and a new trial ordered.

CHRISTIANCY and CAMPBELL JJ. concurred.

MARTIN CH. J. did not sit.

R. E. Case v. J. M. Dean et al.

Circuit Court Commissioner: Tax titles. The provision in the law of 1858 (§ 101, p. 186) authorizing proceedings before a Circuit Court Commissioner to test the validity of tax titles in very plain terms purports to act on rights, and not on remedies. It is therefore absolutely void. Waldby v. Callendar, 8 Mich. 430. Supervisors: Valuations of real estate: Assessment roll. On the trial, evidence was admitted tending to show an erroneous footing of the valuation of real and personal property upon the assessment roll, and that the Board of Supervisors in equalizing the township assessment had adopted and confirmed valuations of property according to such erroneous footing.

CASE V. DEAN ET AL.

Held, that the rolls being in evidence before the jury, proof by witnesses as to the true footings of the rolls was immaterial, and that it was no part of the duty of the Supervisor to foot up the valuations of real and personal estate on the rolls, as a pre-requisite to equalization by the Board.

Board of Supervisors: Equalization: Jurisdiction. The power of equalization by the Board being confined to the real estate, and the whole subject being under their complete jurisdiction they may adopt their own means of reaching the result; and when that result is reached, it is conclusive and cannot be invalidated by evidence that they had adopted as a basis an erroneous footing or aggregate of the valuations returned by the Supervisor.

When any alteration is made in the aggregate valuation of the real estate, the additions or deductions so made may be expressed in any form which may by calculation be reduced to a percentage.

In

Effect of erroneous footing by the Board, of the valuation of personal property. ascertaining the amount of State and County taxes to be apportioned among the several townships, an erroneous footing by the Board of the valuations of personal property as appraised by the Supervisors will not invalidate the tax unless the error has the effect to increase the tax to be borne by the parcels of land in question beyond its just proportion.

Fraudulent bidding at tax sale, effect of. When a purchaser bids off property at a tax sale, the fact that a combination existed to prevent certain lands from being sold to other bidders, but to which he was not a party and of which he was ignorant, will not vitiate his purchase.

Omission of assessment of one mill tax, effect of. The one mill tax required to be assessed for township library and school purposes, (Comp. L. § 2350) was not placed on the tax roll in the column of school taxes as required by law, and did not appear by the roll to have been assessed at all. But the amount of taxes stated in the column of state, county and township taxes was too much (according to the valuation and amount to be raised) by just the amount of a one mill tax on the valuation of the tracts. Held, that the jury were not at liberty, for the purpose of sustaining the tax title, to find that the one mill school tax had been added to or included in the state, county, and township taxes; but that the excess in the column of the latter taxes could not be thus explained; and that the sale of the lands for the taxes were thereby rendered void. The statute requiring this one mill tax to be stated in the column of school taxes is not merely directory, but mandatory.

Power of Superisor to assess :

Clerk's certificate: Void sale. The certificate of the township clerk stated that the sum of $200 had been voted for township purposes at the annual meeting. It appeared also from the warrant attached to the tax roll, for the year 1857, that the taxes in the column of state, county and township taxes in one parcel of land was 15 cents in excess, and in another 6 cents, according to the valuations and amounts to be raised. Held, that the statute presumption in favor of the tax title did not extend so far as to require or authorize the presumption that another certificate had been given for a further sum; that the statute requiring and contemplating but one certificate, the proof of one did of itself raise a presumption against the existence of another not shown to have existed.

The authority to tax being fixed by the statute must be strictly pursued. The Supervisor can only assess such taxes as are properly certified to him and such as the law makes it his duty to assess without such certificate; any material excess, therefore, in the state, county, or township tax- and which are all blended in one column - will render the taxes in such column void; and a sale based on such tax will be void.

Tax title:

CASE V. DEAN ET AL.

Burden of proof.

While the holder of a tax title may rest upon his deed until the opposite party introduces such evidence as, in the absence of all counter testimony, will afford reasonable ground for presuming the proceedings anterior to the deed to be irregular, yet when this is shown, the burden of proof is thrown upon the holder of the tax title.

Auditor General's deed: Presumption of regularity. To overcome the presumption of regularity in the Auditor's deed, plaintiff must show some substantial error affecting injuriously the owner of the land in the raising, return, assessment or collection by sale for the taxes levied.

Tax roll: Error in computation. The tax roll upon its face showed an error of ten cents, in the aggregate amount of taxes as carried out opposite a certain parcel of land; but which the County Treasurer corrected before the sale. Held, that as this could not injure the owner of the land, it must be disregarded.

Heard April 3d, 4th and 5th. Decided July 11th.

Error to St. Joseph Circuit.

This was an action of ejectment by the owner of the fee, brought against the plaintiff in error, who claimed the premises by virtue of two deeds from the Auditor General, made on sales for the years 1856 and 1857.

The tax deeds had been recorded in the counties where the land was situated, more than two years before the commencement of suit.

The plaintiff below obtained judgment in the Circuit Court.

The case comes up on numerous exceptions taken to the rulings of the Court below, and which are stated in the opinion.

H. F. Severens and G. V. N. Lothrop, for plaintiff in error.

1. It was not competent to show by witnesses the actual footing of values of real estate on the assessment roll.

a. The final aggregate of values of real estate is fixed by the Board of Supervisors. This then becomes the legal basis for the assessment of taxes. Laws 1853, § 27, p. 137; 31, p. 138.

§

It is to be observed that no footing of the valuation is required by law. The footing is but an act of computation. The roll is legally certain without it.

CASE V. DEAN ET AL.

The Supervisors, by their process of equalization, determine what shall stand as the aggregate for the purpose of levying the taxes. This they may do either by stating the per cent. to be added or deducted, or by completing the computation themselves and stating the result.

They are also required to determine and state the total aggregate of real and personal estate of each town as determined by them.-Laws 1853, §§ 29, 30, p. 137.

This must be taken as the final and authoritative basis for the levy of taxes, and not subject to any further remission. Barb. 127; 7 Id. 133; 16 Id. 244; 19 Id. 22; 21 Id. 207.

b. These observations apply to the evidence put in from the blank pages of the assessment rolls. It seems to have been assumed that there were footings made by the town assessor. But there is no evidence of this. Even if there were, it would be but a volunteer act of the assessor, and of no obligation, validity, or force whatever. It was utterly immaterial.

Yet this evidence constitutes an important part of the foundation on which the counsel for plaintiffs below, and the Court, placed their case.

2. The plaintiffs below were allowed to prove what is called a "practice" among bidders in St. Joseph county, not affecting the land in question, nor including the defendant below.

It is not necessary for us to consider what might be the effect of a conspiracy to deter bidders brought home to Mr. Case. That is not the thing proved or offered to be proved.

The plaintiffs sought to show, 1st, that persons present at the sale frequently proclaimed "That is my land." 2d, that this frequently led to a withdrawal of competing bids. There is nothing unlawful in such acts. They do not constitute a conspiracy. They bind no one. does not suffer. At any rate, so far as the defendant below was concerned, the matter was res inter alios.

The State