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such deed is primâ facie, and only primâ facie, evidence of the regularity of the proceedings; 1 and although the deed contains recitals of every prerequisite prescribed by the statute, yet if the land was misdescribed in the advertisement of the tax sale, the deed is invalid.2 The statute also enacts, that a deed in the usual form should be "sufficient evidence of the authority under which said sale was made, the description of the land, and the price at which it was purchased." It was held in Parker v. Overman,3 that the term "sufficient" meant merely primâ facie, and was not conclusive. But this clause means, that such deed shall be primâ facie evidence that the steps prerequisite to the sale, and which constitute the au- *90 thority of the officer to sell, have been regularly taken, as well as of the description of the land, and the price at which it was purchased; and that the party impeaching the deed must prove irregularities, in order to invalidate the sale. By a deed "in the usual form " under that act, is meant a deed which substantially recites the material steps which the law requires to constitute a valid tax sale, including a proper description of the land, the price paid, with words granting the land to purchasers, &c., and if it fail to recite any fact material to the sale, the party relying on the deed must prove that fact aliunde. If the deed recites that the owner of the land was a non-resident, it is prima facie evidence of that fact, the deed being regular on its face.6]

The New York statute of April 10, 1850, declares, that the tax deed "shall be presumptive evidence that the sale, and all proceedings prior thereto, from and including the assessment of the land, and all notices required by law to be given previous

1 See Hogins v. Brashears, 13 Ark. 242; Merrick v. Hutt, 15 Ark. 338; Roberts v. Pillow, 1 Hemp. 624; 13 How. (U. S.) 472; Thomas v. Lawson, 21 How. (U. S.) 332.

2 Patrick v. Davis, 15 Ark. 363.

8 18 How. (U. S.) 142.

4 Bonnell v. Roane, 20 Ark. 114. See Merrick v. Hutt, 15 Ark. 338.

5 Budd v. Bettison, 17 Ark. 546; Gossett v. Kent, 19 id. 602; Bonnell v. Roane, 20 id. 114; so under the California statute, of 1854; Moss v. Shear, 25 Cal. 38. See Hightower v. Freedle, 5 Sneed, 312; Long v. Burnett, 13 Iown, 29.

6 Hunt v. McFadgen, 20 Ark. 277.

to the expiration of the two years allowed to redeem, were regular according to the provisions of this act, and all laws directing or requiring the same, or in any manner relating thereto." (a)

(a) See Bunner v. Eastman, 50 Barb. 639 (p. *88, sup. note). The legislature may take away from deeds already executed their statutory character as primâ facie proof, the grantee having no vested right in rules of evidence. Hickox v. Tallman, 38 Barb. 608.

In Iowa, the statute (§ 74 of the Act of April 3, 1860) provides that the county treasurer's deed "shall vest in the purchaser all of the right, title, interest, and estate of the former owner, in and to the land conveyed;" that "it shall be primâ facie evidence in all courts of the following facts: 1. That the property conveyed was subject to taxation; 2. That the taxes were not paid; 3. That the property conveyed was not redeemed, and shall be conclusive evidence of the following facts: 1. That the property had been listed and assessed at the time and in the manner required by law; 2. That the taxes were levied according to law; 3. That the property was advertised for sale in the manner and for the length of time required by law; 4. That the property was sold as stated in the deed; 5. That the grantee was the purchaser; 6. That the sale was conducted as required by law; 7. That all the prerequisites of the law were complied with by all the officers, from the listing and valuation of the property, up to the execution of the deed, both inclusive, and that all things whatsoever required by law to make a good and valid sale, and to vest the title in the purchaser, were done, except in regard to the three points named in this section wherein the deed shall be prima facie evidence only." An action was brought to recover possession of certain lots, plaintiff claiming under a tax deed. The defendant offered to show that the advertisement was insufficient, and that in it the lands were described as being delinquent for the year 1839 instead of 1859. He also offered to show that the assessor assessed this property before he was qualified, and that after qualifying he did not reassess it.

The only question was, therefore, on the constitutionality of the above provisions. Held, that so far as the above objections were concerned, it was constitutional; sed, whether the rest of the law was, quære. Allen v. Armstrong, 16 Iowa, 508. See Corbin v. Hill, 21 Iowa, 70.

CHAPTER IV.

OF THE ELECTION AND QUALIFICATION OF THE SEVERAL OFFICERS WHO HAVE ANY THING TO DO WITH THE EXECUTION OF THE POWER.

It is a general principle of law, that whenever a right is claimed under the proceedings of one who purports to have acted in an official capacity, the fact that he who did the act upon which the right is based, was a public officer, must appear. This is especially applicable to a case where a title to real estate is to be divested under the authority of a statute, and through the intervention of a public officer. The statute being the authority, and the officer the agent, to execute it, and no one being empowered to do the act except the person specially designated in the law for that purpose, it follows that a stranger to the power cannot execute it. The power is conferred upon the officer, not the man. It is an official not a personal trust. It does not rest upon confidence, but upon official responsibility.

Hence, the only security of the proprietor of the estate, is in the official character of the person to whom the power is committed. This security mainly depends upon the responsibility of the officer to the government, the sanctity of his oath of office, and his liability to those whose rights are violated by his wrongful acts. It may, therefore, be safely affirmed as a general rule, that the party claiming title under a tax sale must show that the acts required to be done under the statute, in order to divest the title of the former owner, were performed by the officers of the law, and not simply by persons who assumed to act in an official capacity. The citizen is entitled

4

*92* to all the protection against fraud, rapacity, and abuse of authority in the sale of his property, which official responsibility can secure.1 It therefore becomes an important question to ascertain who is an officer, within the meaning of this rule. A resort to general principles is necessary, in order to determine the question, especially as the authorities are conflicting. An office is defined to be, a public charge or employment; and he who performs the duties of that office is an officer.2 There is no such thing known to the law as an office de facto, nor can there exist such an anomaly as an officer de jure, and one de facto, in the possession of an office, at the same time. But it very frequently happens that one has the title, while another is in possession of the office under a claim of right. The distinction between an officer de jure - one who is de facto suchand a mere usurper, is well known and clearly settled, and the consequences naturally arising from these distinctions are equally well settled. An officer de jure has the legal title to, and is clothed with all the power and authority of the office. He has a title against the world, to exercise the functions of the office, and receive the fees and emoluments appertaining to it. He is responsible to the government and injured parties, when he abuses his trust or transcends his authority. And his acts, when within the scope of that authority, cannot be questioned by the citizen or any department of the government.5 An officer de facto, is one who comes in by the forms of an election or appointment, but in consequence of some informality, omission, or want of qualification, or by reason of the expiration of his term of service, cannot maintain his possession, when called upon by the government to show by what title he claims to hold the office. He is one, who exercises the duties of an office under claim and color of right; being dis93 tinguished on the one hand from a mere usurper, and on the other, from an officer de jure. The mere claim to

1 Birch v. Fisher, 13 Serg. & Rawle, 208; Payson v. Hall, 30 Me. 319. 2 United States v. Maurice, 2 Brock. 102; s. c. Marsh. Decisions, 470.

3 Hildreth v. McIntire, 1 J. J. Marsh. 206.

Boardman v. Halliday, 10 Paige, Ch. 223.

5 McGregor v. Balch, 14 Vt. 428.

be a public officer, or the performance of a single, or even a number of acts in that character, will not constitute an officer de facto: there must be some color to the claim, under an election or appointment, or an exercise of official functions, and an acquiescence on the part of the public for a length of time, which would afford a strong presumption of a colorable right.1 The definition of Lord Ellenborough is probably more accurate and expressive than any other: "An officer de facto is one, who has the reputation of being the officer he assumes to be, and is yet not a good officer in point of law." 2 He who intrudes himself into an office which is vacant, or ousts the incumbent, without any color of title whatever, and assumes to execute the duties of the office, is a mere usurper, and his acts are void in all respects.3

The consequences naturally arising from the distinction between an officer de jure and one de facto are well settled. An officer de jure is clothed with all the power and authority appertaining to the office, and his acts, within the limits of his authority, cannot be questioned anywhere; while the acts of an officer de facto are valid so far only as the rights of the public or third persons, having an interest in such acts, are concerned. Neither the title of such an officer, nor the validity of his acts as such, can be indirectly called in question in a proceeding to which he is not a party. The effect of this rule is, to render the acts of an officer de facto as valid and effectual as though he was an officer de jure. The interests of the community imperatively require the adoption of such a rule. The affairs of society could not be conducted upon any other principle; without it, there would be an entire failure of jus

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tice. To deny validity to the acts of such officers, would *94 lead to confusion and insecurity in public as well as private affairs, and thus oppose the true policy of every wellregulated State.

1 McGregor v. Balch, 14 Vt. 428; Aulanier v. The Governor, 1 Texas, 653; Plymouth v. Painter, 17 Conn. 585; Tucker v. Aiken, 7 N. H. 140; Margate Pier v. Hannam, 3 Barn. & Ald. 266; s. c. 5 Eng. Com. Law, 278; Wilcox v. Smith, 5 Wend. 234.

2 The King v. The Corporation of Bedford Level, 6 East, 368.

3 Tucker v. Aiken, 7 N. H. 140.