the omission of the former owner,hecome a.hsolute. ,And the judge or the cletkofthe county court might, with equal propriett, have been designated as the person to execute the same. Nor is it material in this connection that an outgoing sheriff is required (Code Civil Proc. ,§986) to "complete the execution of all final proc!:'Ss which he has begun to execute," and that a warrant for the collection of delinquent taxes is "deemed an execution against property, * * * @d shall be executed and returned in like ;manner," except as otherwise provided, (Laws Or. p. 766, § 82;) for both a· warrant and an ex.ecution are fully executed when a sale is mll,de thereon, and a certificate thereof given to the purchaser·.. The process is then returnable, and nothing more is done on 01' in pursuance of it. In this state, the sale of property on an execution for the enforcement of a judgment is conditional, not only on redemption by the debtor or any lien creditor, but on the confirmation thereof by the court. Code CiviI Proc. §§ 293-301. The proceedings subsequent to the ,sale and the return of the process, whether for the enforcement of a judgment or the collection of delinquent taxes, including the deed to the purchaser or .redemptioner, are taken in pursuance of the statute in such cases made and provided, and not the process, and are conducted and performed before or by the sheriff then in office. The sUPreme cou.rt of this state in Moore v. Wallamett T. &: L. 00.,7 Or. 369, held that the sheriff in office is the proper person to make the deed in pursuance of a sale on execution. "Such a construction of the statute," says Judge BOISE, speaking for the cou.!'t, "will establish a rule most convenient to the parties; for the sheriff in office can always be as his official duties require his presence in the county, while the former sheriff may die, be disqualified, or remove from the county, and render proceedings before him impracticable." Although this decision was made in 1879, no notice is taken by the court of the amendment to said section 986 of the Code, by the act of October 21, 1878, (Sess. Laws, 99,) which adds a proviso to the effect that, when real property is sold under execution,a.nd the sheriff making the sale fails to make a proper deed to the purchaser during his term of office, the court confirming the sale rrUty order the sheriff in office to make such deed, which shall have the same effect as if made by the sheriff who made the sale. In the argument of counsel for appellant, as reported, (page 363,) this amendment is referred to as plainly evidencing that the legislative assembly recognized the law to be such that the sheriff who made the sale must make the deed; and such appears to be the effect of the amendment, except in the cases therein provided for, wherein the court may order the sheriff in office to make. the deed. But it is probable, though the fact cannot be definitely ascertained from the report of the case, that the deed in question was· made by the sheriff in office before section 986 was amended, and therefore the court treated the amendment8B so far non-existent. But in my judgment section 986, in neither its original nor amended form, has any, or was ever intended to have any, application to a war-
rant for the collection of delinquent taxes. Indeed, the amendment plainly limits the operation of the section to sales on execution for the enforcement of judgments, by the fact that the power to make the order therein provided for, directing a sheriff in office tq make a deed, is limited to the court which confirmed the sale,-a proceeding unknown to a sale for delinquent taxes. Property sold for delinquent taxes may be redeemed in two years from the date of the certificate of sale,-a period equal to a sheriff's term of office. Therefore the redemption must occur after the expiration of the term of the sheriff who made the sale. The redemption is a private act which takes place between the parties, by the payment to the purchaser of the purchase money, and a certain per centum thereon in addition. If no redemption is made within the time prescribed, on the application of the party entitled thereto, the statute directs "the sheriff"-not the ex-sheriff or the person who made the sale, but the sheriff then being-to make the deed accordingly. It is objected that the writing purporting to be the deed of Jordan, the sheriff in office, is not proven. Section 22 of the. act relating to conveyances (Laws Or. 518) provides that a conveyance, acknowledged as therein prescribed, "may be read in evidence without further proof thereof," and shall beadmitted to record. And by section 27 of the same act (Laws Or. 518) a certified transcript of such record "may be read in evidence * * * with the like force and effect as the original." The deed is executed in the nameof"Thos. A. Jordan, sheriff of Multnomah county, Oregon, and tax collector of said county, by A. W. Witherell, deputy." It was acknowledged before the county clerk, and the certificate states that personally appeared before said clerk "the within-named Thos. A. Jordan, by A. W. Witherell, deputy-sheriff" of the county of Multnomah, Oregon, and acknowledged the execution of the deed. By sections 962 and 983 of the Code of Civil Procedure it is provided that "a sheriff may:have a deputy," who "has the power to perform any act orduty that his principal has." A deputy is an agent, and, when he performs any act within the scope of his agency or deputyship, he should do so in the name of his principal. In the nature of things, a deed can only be'acknowledged by the person who actually signed or executed it. Consequently a deed executed by an agent or deputy must be acknowledged by him. But in so doing he acts for his principal, the same as in the signing or execution of the writing, and therefore he must make the acknowledgment in the name of and for the principal. See Huey v. Van Wie, 23 Wis. 617; 2 Washb. Real Prop. 573; 1 Jones, Mortg. §§ 130,533; Freem. Ex'ns, § 327. The original deed, being properly executed and acknowledged, proves itself, and the transcript from the record thereof does the same. The effect of the deed remains to be considered. By section 5 of the act of December 18, 1865, (Laws Or. 767, § 90,)it is declared that such a deed "shall operate to convey a legal and equitable title to the purchaser, sold in fee-simple to the grantee named in the deed," whatever that means. But the section also provides that, on the delivery of said deed, "all the proceedings required or directed by law in relation to the
levy, assessment, and collection of the taxes,. and the sale of the propshall be presumed regular, and to have been. had and done in accordance with law; and' such deed.shaH be primajacie evidence of title in the grantee, and such presumption and such primaJa.cie shall not be disputed or avoided except by proof of either (1) fraud in: the assessment or or redemption collection orthe tax; (2) paymentorthe tax before. after the sale;' (3) that the payment or redemption was prevented by the fraud oitha purchaser; ;(4)that the property was sold for taxes for which the owner of the property at the time of the sale was p.ot liable, and that no part of the tax was levied or assesslld on the property sold." It appears from the delinquent tax-roll that this property belonged to Ida J. Hawthorn, and from the return of the sheriff it appears that it was so advertised and sold; while the fact is it belonged to Ida F. Hanthorn, and wasao asserted, except that H J" was used as the initial of the middle nanie; instead of "F."The deed recites that the sale was made. in pursuance of a warrant tothe··sh,eriff to collect the delinquent taxes of Ida F. Hanthorne by thesaIe .Qf her goods and chattels, and, in default thereof, by the sale of the lots io :controversy, describing them; that the notice of the sale was duly given,. auda certificate thereof given to the purchaser. But the name of the owner in the notice must have been the same as that on the delinquent tax-roll,-Ida J.. Hawthorn,-from which it was made, and the return of the sheriff so states. The certificate of sale is not produced. Presumably: it was delivered to the sheriff by the purchaser when .he;obtaiIied his deed. It is not filed with the proceedings. But the name oLthe owner, as stated therein, Il1ustbe the same as in the delinquent tax-rolland notice. How the name came to be Ida F.·Hanthorne i.n t1).e sheriff's deed in-, stead of Ida J. Hawthorn, as in the delinquent ta,x-list, notice, and tificate of sale, is a q uestionnot, now ntJcessary to consider, except that it does not appear to have been legally done. If the plaintiff shall be. injured or lose her property thereby, the parties to the transaction may be liable, uqder section 109, (Laws Or. 771,) for double dan1ages and costs of suit. To deliberately declare or recitll in a deed that certain property was Bold for taxes'as the property of one person, when in fact itwas advertised and sold as that of another, so as to make the deed conform to the assessment and the actl,lal ownership of the property, and thereby preclude the owner from showing the truth thereabout, may prove to be a "fraudulent act" within the statute, for which a sheriff and his bondsmen would be liable. On these facts the question arises, is a tax deed conclusive evidence, under the statute, of title in the grantee to the premises,therein grapted, notwithstanding it appears from the prior proceedings that the property was advertised and sold, not aathe property of the ownerto whom it was assessed, but as that ofanother? Land occupied must be assessed in the name of the owner or occupant; but unoccupied land,if the owner. unknown, maybe assessed without naming any owner. Laws Or.750, § 7; Id. 755, § 35. This property was assessed to the owner, and presumably was occupied. It appears to have been assessed to Ida.F. Han-
thorn, and the taxes regularly paid by her, from to 1882, inclusive. The delinquent tax-roll on which the sale of property is made must contilin the description thereof found in the assessment lll1d tax-rolls, and the name of the person taxed therefor, if therein specified. Laws Or. 764, §§ 76, 77. And, generally, the statute relating to taxation provides or plainly indicates that, when the owner of property is known, it must be assessed in his name, or that of the occupant, if there be one, imd that such nam.e becomes and is a part Qf the description of the premises, and as· such should be carried through aU the subsequent proceedings, and particularly the notice and certificate of sale. 1 am unable to say that the change of the name of the person taxed in the proceedings subsequent to the tax-roll, and prior to the execution of the deed, brings the case within either of the four grounds specified in the statute on which the deed may be avoided. If either, it must be the first in the assessment or collection of the tax;" Now, fraud- is l}Ot to be inferred from an aut which, on any reasonable hypothesis, mas have been innocently done. 'l'he change in the nlime may have and most' likely ,did occur through mistake resulting from carelessMl:'ls, and without any wrongful purpose or intent.i' .InKelly V. Herrall, 10 Sawy. 169, 20 Fed. Rep. 364, I held that this statute in making a. tdx deed conclusive evidence of the title of the gra.ntee, except in the four particulars mentioned, goes, in Some respeots, the power of the legislature. Following the ru1ing in McCready v.Sexton,29 Iowa, 356, and the comment in Cooley on Taxation (356) and Constitutional Limitations, (368,) it was there said that such a deed -cannot be made conclusive evidence of the existence of any essential step or fact in the transaction, without violating the fourteenth amendment, which fotbids a state "to deprive any person of property without due process of law." The true rule on the subject seems to be that the legislature may make a tax deed conclusive evidence of the regularity of the prior proceedings as to all non-essentials or matters of routine which rest in mere expediency,-acts which need not have been required in the first place, as the affidavit of the sheriff to the delinquent list,-and which the legislature by a curative act excuse when omitted. But the owner of property cannot be precluded from showing the invalidity of a. tax deed thereto, by proving the omission of any act e$sential to the due assessment of the same, the levy of a tax thereon, and the sale thereof, on that account. As to the performance oftheseaets, and the facts necessary to constitute them, the deed can only be made prima facie evidence. Cooley, Tax'n, 521. I think due and reasonable notice of the sale of property for a delinquent tax is generally regatded as necessary to the validity of such sale. Probably no state in the Union authorizes su.ch a sale without requiring public notice of the fact to be given; and, in my judgment, such notice ought to contain the name of the owner or person to whom the property is assessed. Anyone knows. who is at all conversant with the subject, that, in looking at the notice of a sale of propertyfot delinquent taxes,
a person naturally runs his eye along the list of names, rather than the figures and abbreviations indicating the location and quantity of the property. And if he does not find his name there, or that of anyone whom he may represent, heat once concludes that no property in which he is interested is included in the list. But, admitting that the name of the owner is not a necessary part of the notice to be given of the sale of land for delinquent taxes, and that it is sufficient if the statute requires nothing more than a description of the property by metes and bounds, or a reference to the public surveys, or the lot and block, in case of .town property, yet, where the statute directs the name. to be published, the owner has a right to assume that it will be given. Under these circumstances the publication of the name as a part of the notice becomes material, and the omission of it, in my judgment, renders the notice invalid. But where, as in this case, the name oithe owner is not only omitted from the notice, b11-t another and different one given, the same is actually false and D;lisleading. It is true that "Hanthorn" and "Hawthorn" are almost identical in orthography. But they are two <lis tinct and Ellglish names, quite different in sound andsuggestionj as much so as.Sawyer and Sayer. of the mere misspelling of a namej. as 9inclair, SynNeither is ita clair, for Sinclair, or MacFBrson <11' MacPhurson for MacPherson, in/which the name inte,nded is preserved ill the sound, and :to the eye; It is not a case ofit4m wltflns by any means, even but the substitution of one well-known name for tnat of another, whic!}, similar in composition, is unlike in sound and suggestion. Such a notice, in my judgment, is nO /:lOtice. Indeed, iUs worse; it is a false notice. ,A sufficient notice peing a material part. of a sale, and a ' sale being an essential part of the proceeding on which the sheriff's ,deed is based, the want of it may be shown to invalidate the same. And on this conclusion as to the law of the ·case the defendant. is entitled' to a finding in her favor. On February 21, 1887, and since this case was sQ.bmitted for decision, said section 90 of the tax law so as to make a the 'legislature tax deed only prima facie evidence of title in the grantee; and required the "party claiming to be the owner, as against the holder of the tax title," to tender and pay intocourt j with his answer, the ainount of the taxes for which 1;h.eland was sold,with interest thereon at 20 per centum per annum frOm the sale totheda,te of the deed, .and the sherifrs fees for making the ,certificate and deed, together with any taxes the purchaser may have paid on the property,with interest thereon, for the benefit of the holder of said tax deed, his heirs or assigns,in case the same should the defendant commenced a suit be held invalid., , On March 23, in equity i,n this .court against the, plaintiff herein, under section 500 Qf the Code of OivilPr9cedure"for the purpose of determining his claim to the premiseB.;aUegmg that the tax deed under which the plaintiff claims title to is void on the grounds herein considered, and others, and brought in;to aourtand ten,dered him the sum of 350.60 in payment of what wall Jdue him thereon.
I have considered whether this section 90, as ainended, is applicable, as a rule of evidence, to the case under consideration. When the state sold these lots to Bennett it entered into a contract with him, the obligation of which it cannot impair by any subsequent legislation. Const. U. S. art. 1, §10. But theright to a particular remedy to enforce the contract is no part of the obligation thereof. Neither is it considered a vested right. Therefore the legislature may modify or change the remedy at pleasure, so long as it does not, under pretense of regulating the remedy, impair the right itself. Cooley, Const. Lim. 361. And the rules of evidence are considered a part of the remedy, so that a party to. a· contract has no vested right to have a controversy concerning the same determined by the rule of evidence in force when the contract was made. Therefore the rule ofevidence in force when the controversy is determined or decided, applies. Cooley, Const. Lim. 367. Edwar(ls v. Kearzey, 96 U. S. 595., Accordingly it has been held that a statute which made parties to actions competent witnesses; admitted parol evidence to modify a written contract contrary to the common law; required the purchaser at a tax sale to give notice to the occupant before applying for a deed; changed the burden of proof by making a tax deed prima faci£ evidence of title and the regularity of the prior proceedings, or the reverse; or which made a deposition.taken de bene e88e, without notice to the adverse party, prim.a facie evidence of the facts stated,-may be applied to existing action. Rich v. Flander8, 39 N. H. 323; Gibb8 v. Gale, 7 Md. 76; Hickox v. Tallman,38 Barb. 608; Howard v. Moot, 64 N. Y. 268; Curtis v. Whitney, 13 Wall. 68. ' But there must be an opportunity given for investigation and trial. The legislature cannot, under pretelise of prescribing rules of evidence, preclude a party from making proof of his right by arbitrarily and unreasonably dechiring that, on some particular circumstance being shown by the other, the controversy is closed, by conclusive presumption in favor ,of the latter. Cooley, Const. Lim. 368. It was held in Smith v. Oleaveland, 17 Wis. 556', that a tax deed executed under a ,sJtatute which made it cQQclusive evidence of the regularity of the prior proceedings, with certain exceptions, could not, by a subsequent statute, be reduced to mere prima facie evidence of such facts. Toe decision was based on the ground that to allow the character and effect of the deed, as a muniment of title, to be changed by the subsequent statute, would impair the obligation of the contract made by the state withthepul'chaser. And no bas been shown in which there was a contrary ruling on like circumstances. Where the deed is only prima facW evidence, the purchaser takes it subject to the right of any party adversely interested to overcome this presumption by proof to.the contrary. The matteris left open to investigation; and, this being so, the legislature may regulate it by shifting the burden of proof back onto the purchaser. But to open a purchaser's title to proof of defects in the prior proceedings, when he purchased on the faith of a statute which declared his deed conclusive evidence in his favor on these points, is a
very different thing. In my judgment"it impairs the obligatiotJ. of his ccmtract. See Corbin v. Board Oom'rs, 3 Fed. Rep. 356. So far, then, as the legislature had the power and by the act of 1865 did make the tax deed of the plaintiff's grantor conclusive evidence of his title, I do not think the legislature of 1887 had the' power to modify it. If notice of the sale was not an essential part of the proceeding. the legislature of 1865 had the power and did make the tax deed conclusive evidence on the point. But, if the notice was necessary to the validity of .the sale, then, as I have concluded, the legislature did not have the power to make the deed conclusive evidence of the fact. In either view of the matter, the act of February 21, 1887, has no effect on the decision. In the former case, as to this deed, the conelusiveeffect of the act of 1865 could not be modified', and in the latter one the deed is only prima facie evidence at best. But I am pleased to think that the just and long-needed provision in this act, requiririg a party who contests Ii 'tax title to refund the money, with interest, which has been expended in the payment. of taxes for his benefit, may be applied to this transaction in the suit inequity. It is to add that.the supreme court of the state has not passed on the questions involved in this case, or otherwise I would have been spared thetrou,ble of considering them. There must be II finding that the ,plaintiff is not the owner of the premises, or entitled to the posses... sian of them, and that the defendant is.
EXCHANGE NAT. BANK .Gowre.
JOHNSON and others.
Tenne88ee. March 15. 1887.)
PROHISSORi-' NOTES-PAYMENT TO ORIGINAL HOLDER AFTER ASSIGNMENT FOR
If the indorsee constitute the indorser or original holder his agent, by relying on him to collect of the maker, taking himself no steps for that purpose until after the failure of the indorser, payment to the original holder will be good. .
SAH_INDORSER PAYING THE NOTE.
If a batik accept the note of the indorser in discharge of his liability as in· dorser, the title to the first note reverts to the indorser, lind payment to hini is good, although the indorser leave the note on deposit.with the bank; but it is a question for the Jury to determiJ;le whether, on' the facts of the case, the new note be taken In discharge of the indorser's liability, or as a mere memorandum note, not intended to affect the title to the old !iote.
If the maker pay other than the rightful owner of the note; he. cannot rely on f1!;cts unknown to him. and not his acthm; as an estoppel, but if the facts be of a character that establish an agency for collection, that is a defense against repayment.
At Law Motion for new trial. Suit upon a negotiable note made by the defendants to their factors, and paid to them by shipments of produce as agreed upon, but while