entered against the land, the judgment thus rendered becomes conclusive in all collateral actions, and cannot be impeached by showing that the report of the collector, in this respect, was false; and, on error, the court will, by intendment, support the judgment where the record does not affirmatively show that the owner had goods.1 The contrary principle was maintained by Judge Pope in the United States Court for the District of Illinois.2 (a)

1 Taylor v. People, 2 Gilm. 349; Job v. Tebbetts, 5 id. 376.

2 Mayhew v. Davis, 4 McL. 213.

(a) A recital in a collector's deed that "not knowing of any personal property whereon to levy," he proceeded to levy on the real estate, is not a direct and satisfactory mode of reciting that sufficient personal property could not be found, and it seems does not throw burden on owner of showing contrary. Jones v. McLain, 23 Ark. 429.

CHAPTER X.

OF THE RETURN OF THE DELINQUENT LIST.

IN several of the States, as heretofore remarked, the power to collect the tax, and the power to sell the land in case of nonpayment, is vested by law in different officers.1 When such is the case, the statute usually requires the collector to return a list of delinquents to his superior, in a certain prescribed form, authenticated or verified in a particular manner, and within a limited time. When such is the requirement, it is regarded as imperative, and not directory, and an exact compliance is demanded. This return is the only evidence of delinquencyof the fact that a demand was made, by the collector, upon the person against whom the tax was charged and that the body of such person could not be found within the district of the collector; or, that the delinquent had no goods and chattels within the district out of which the taxes could be made. Besides, the return is the foundation of the authority of the superior to whom it is required to be made to sell or order a sale of the land of the delinquent. If the officer to whom the return is made, is the person to whom the power of making the sale is intrusted, the return constitutes his authority to sell — if he is directed to issue a warrant or order to some third person to make sale of the lands embraced in the delinquent list, the return is the basis upon which he issues the order or warrant. Such was the requirement in Illinois, Ohio, Vermont, *182 New York, and New Hampshire.3 A neglect, there

*

1 Ante, chapter 7.

2 See Hill v. Mason, 38 Me. 461; Huntington v. Brantley, 33 Miss. 451; Pitts v. Booth, 15 Texas, 453; Hopkins v. Sandige, 31 Miss. 668.

3 Revised Laws Illinois, 1833, p. 524, sec. 3, and p. 528, sec. 1; Messenger v.

fore, to make this return in the form, manner, and time prescribed, is fatal to the validity of a tax sale.

The Ohio statute required that the return should be attested by the oath of the collector. In the Lessee of Harmon v. Stockwell, the return was sworn to before the county auditor, and it was contended that the auditor had no authority to administer the oath, and therefore the sale was void. The court sustained this position, saying, "As the penalties of perjury were intended to be imposed for a false return, it is clear that the oath must be administered by competent authority. If the auditor at that time possessed no such power, the list wants an essential requisite which invalidates the sale. The power to administer an oath is incidental to no officer except the judicial. It must be conferred by statute, either directly or by implication, or ministerial officers do not possess it." The court then proceed to examine the statutes of Ohio, relative to the powers and duties of county auditors, and thus conclude: "We therefore find no authority, in any of the statutes enabling the auditor to administer oaths, except in certain specified cases, and the instance before us is not one of them. The grant of authority in those specified cases sufficiently implies that he possessed it in no others. The return of the collector, therefore, was not made under the securities and sanctions which the law required; and this omission is fatal to a title held under such strict principles as a tax sale, and supersedes the necessity of looking further into the case."

Under another statute of Ohio, the county treasurer was empowered to collect the taxes; and in case he was unable to do so, he was required to make a return of the delinquents to the county auditor, and to sign and testify to its correctness under oath or affirmation, to be administered *183 by the county auditor. The county auditor was required to make a complete record of this return. In Miner v.

*

Germain, 1 Gilm. 631; Harmon v. Stockwell, 9 Ohio, 93; Hannel v. Smith, 15 Ohio, 134; Doe v. Whitlock, 1 Tyler, 305; Winder v. Sterling, 7 Ham. 190 (Part 2); Jackson v. Morse, 18 Johns. 442; Tallman v. White, 2 Comst. 66; Homer v. Cilley, 14 N. H. 85.

19 Ohio, 93. See Ward v. Barrows, 2 Ohio St. 245.

McLean,1 the record offered in evidence did not show affirmatively that the oath had been taken by the treasurer, but a transcript of the record did. The sale in question was held void, because the oath was essential to the validity of the return, and it must appear upon the record; no inferior evidence being admissible for the purpose of supplying the defect. In Illinois, a return of the delinquent list to the circuit court, constitutes the authority of that court to enter judgment against the delinquent list.2 So in Tennessee 3 and Ohio.*

[Upon the same principle as above stated, if the law requires the tax collector, after a sale, to return the certified list furnished by the register of lands, with a note to each tract or lot, showing the disposition made of it; if sold, to whom, and the amount paid by the purchaser, or if not sold, the amount for which it was offered for sale, and bid in for by the State, this return is essential to a deed by the register; and if the collector merely write against a tract a person's name, this does not fulfil the law; and the register's deed, based upon such a return, is invalid. And although the purchaser could not control this omission, he nevertheless buys subject to all the requirements of law.5]

1 4 McL. 188.

8 Thatcher v. Powell, 6 Wheat. 119. 5 Donohoe v. Hartless, 33 Mis. 335.

2 Spellman v. Curtenius, 12 III. 409.

4 Wilkins v. Huse, 9 Ohio, 154.

CHAPTER XI.

OF THE PROCEEDINGS WHERE A JUDICIAL CONDEMNATION IS REQUIRED.

IT has been observed already, that in some of the States, the power to sell land for the non-payment of taxes, does not arise until the delinquency of the owner has been judicially ascertained.1 The character, requisites, and effect of these proceedings, vary according to the peculiarities of the local law under which they are carried on. There are, however, some general principles, which are regarded as landmarks, and uniformly adhered to. It is a familar principle, that a judgment is conclusive upon parties and privies, where the court had jurisdiction to render it. (a) Unless such jurisdiction exists, the judgment is a nullity, and may be impeached collaterally. (b) This jurisdiction must extend to the parties as well as to the subject-matter. True, authorities may be found which advance the position, that a judgment of a court of general jurisdiction cannot be questioned in a collateral action, for want of jurisdiction over the parties; 2 but this doctrine seems to be at war with the fundamental principles of our institutions. There is no such thing as unlimited power in this country, and no power which can be exercised arbitrarily. No such principle exists, as that the courts can do no wrong. The acts of every tribunal acting under the authority of law, may be questioned

(a) That after judgment in rem against the land it is too late to complain of errors in the assessment, see Daily v. Newman, 14 La. Ann. 580; so after decree to foreclose right of redeeming from tax sale; McGahen v. Carr, 6 Clarke (Iowa), 33; nor can a judgment be attached collaterally by showing that tax has been paid; Cadmus v. Jackson, 52 Penn. St. 295; Wallace v. Brown, 22 Ark. 118.

(b) Brown v. Hogle, 30 Ill. 119. 2 2 American Leading Cases, 737.