Clements v. Berry. 11 H. of time be found. A variation of nine or ten minutes is not uncommon in chronometers: and the timepiece of the register, it is supposed, could have no exclusive claim to regulate judgment liens. Whether good or bad, it would answer the purpose designed by showing the priorities of instruments left for record. But the test in regard to judgment liens, would be uncertain and unsatisfactory. As a rule of property, it would seem to be, at least in many cases, impracticable. How can one, five, or ten minutes be ascertained with the requisite certainty, to lay the foundation of a right? It would hardly be contended that the entry of a ministerial officer, though made by authority of law, should limit or defeat a judgment lien in such a case. No other decision of the supreme court of Tennessee than the one now before us, is applicable to this question. And if the case to be reviewed is to constitute the rule for our decision, as insisted, the power of revision would be useless. * [ *412 ] Whilst we follow the construction of a state statute, established by the supreme court of the State, care must be taken that our jurisdiction and practice shall not be limited or controlled by the statutes or decisions of the State, beyond the acts of congress. The judgment of the state court is reversed, and the cause is remanded to that court for further proceedings in conformity with this opinion. Taney, C. J., Catron, J., Daniel, J., and Nelson, J., dissented. CATRON, J. By rule of court, made when only one term was held in the year for the districts of Tennessee, the United States circuit court adopted a rule requiring a copy of the declaration to be sent out with the writ, in all cases of suits on written agreements for the payment of money, where the plaintiff desires to obtain judgment at the return term. If a copy of this declaration is served with the writ on the defendant thirty days before the court commences, then the defendant is required to plead before the first day of the terin; and if he fails to do so, it is the duty of the clerk to enter judgment by default at his office. This fact he reports to the court in all cases. And then such further time is given for making up the pleadings as may be deemed proper by the court itself; thus extending the time usually three days. But at March term, 1848, only two additional days to plead were allowed. This office judgment has no force in itself, further than to speed the final judgment. It stands over, like other causes, triable on an issue. When it is reached on the docket in due course, a jury inquires of Moore v. Brown. 11 H. damages; or if the sum be certain, then a regular and binding judgment is entered of record by the court. An execution is uniformly awarded in terms by the final judgment, and to which the execution on its face refers, by a brief recital. To this award of execution the fieri facias relates, and binds personal property of the defendant. The United States courts are governed by the state laws creating a lien; and the state laws are settled by uniform adjudications that the lien attaches by a final judgment and award of execution. From that time defendant's property is in custody of the law. Johnson v. Ball, 1 Yerger, 292. In this case there is no allegation of fraud. The debtor transferred his property to a trustee honestly and fairly, according to the face of this record. By the law of Tennessee, the [413] deed of trust took effect the moment it was delivered to the register to be recorded. It was his duty by express law to indorse on the deed the exact time of delivery. After that, all liens were cut off. This was done before the judgment was rendered. It matters not whether defendant parted with his property on the day the judgment was rendered, or on a subsequent day, as he was devested of it the moment the trustee delivered the deed to be recorded. If it was otherwise, and the execution related to a judgment by default, (which might remain unconfirmed for months,) all executions or final judgments, where a default had been entered, would bind from the first day of the term, and overreach sales made by retail dealers to an alarming extent; a doctrine unknown and altogether inadmissible in the State of Tennessee, or elsewhere, so far as I know. The supreme court of Tennessee, (to revise whose decision this writ of error is prosecuted,) laid down the law correctly, as I think, in its opinion in this cause, and I am of opinion that the judgment ought to be affirmed. And I am instructed to And I am instructed to say for my brother Nelson, who heard the cause, but is now absent, that this is his opinion also. 2 B. 430. JOSHUA J. MOORE, Plaintiff, v. JAMES BROWN, ALFRED BROWN, HARMON HOGAN, and JOSEPH FROward. 11 H. 414. The statute of limitations of Illinois, which makes a possession of seven years a bar, in favor of one having a connected title deducible from any officer authorized by the laws of the State to sell such land for non-payment of taxes, does not include a case where the deed from an officer was void on its face, because the requirements of the law were not observed in making the sale; and the officer had no authority, according to the recitals in the deed, to make the sale. Moore v. Brown. 11 H. CERTIFICATE of division of opinion by the judges of the circuit court of the United States for the district of Illinois. The question is stated in the opinion of the court. The deed referred to was as follows: : [ * 415 ] *"The auditor of public accounts of the State of Illinois, to all who shall see these presents, greeting: Know ye, that whereas I did, on the 9th day of December, 1823, at the town of Vandalia, in conformity with all the requisitions of the several acts in such cases made and provided, expose to public sale a certain tract of land, being the south half of section thirty-five, township twelve north, in range one west of the fourth principal meridian, for the sum of $10.81, being the amount of the tax of the years 1821 and 1822, with the interest and costs chargeable on said tract of land. And whereas, at the time and place aforesaid, Stephen Davis offered to pay the aforesaid sum of money for the whole of said tract of land, which was the least quantity bid for; and the said Stephen Davis has paid the sum of $10.81 into the treasury of the State; I have granted, bargained, and sold, and by these presents, as auditor of the aforesaid State, do grant, bargain, and sell, the whole of said south half of section thirty-five, in township twelve north, in range one west of the fourth principal meridian, to Stephen Davis, his heirs and assigns. To have and to hold said tract of land to the said Stephen Davis and his heirs forever; subject, however, to all the rights of redemption provided for by law. "In testimony whereof, the said auditor has hereunto subscribed his name and affixed his seal, this 20th day of June, 1832. "J. T. B. STAPP, Auditor." Butterfield, for the plaintiff. No counsel contrà, WAYNE, J., delivered the opinion of the court. Upon the trial of the cause, after the plaintiff had introduced his testimony and rested his case upon it, the defendants, in order to bring themselves within the limitation act of Illinois, passed in 1835, offered in evidence, as the foundation of their title, a deed from the auditor of public accounts of the State of Illinois. It purports to have been executed by virtue of a sale made on the 9th day of December, 1823, for the non-payment of taxes under the revenue act of February, 1823. The plaintiff's counsel objected to the introduction of the paper, and the court were divided in opinion as to its admissibility. Moore v. Brown. 11 H. The act just mentioned requires the owners of lands to pay their taxes into the state treasury, on or before the 1st day of October. The seventh section declares, if they shall fail to do so, "it shall be the duty of the auditor to make a transcript from the books of all such delinquents, charging the tax with an interest at the rate of six per centum until paid, and all costs which may accrue," and that the auditor shall "cause the same to be advertised in the paper printed at the seat of government, or in some other paper printed in the State, for three weeks, giving notice of the day of sale, the last of which publications shall be at least two months before the day of sale, and the auditor shall proceed to sell, on the day fixed in such advertisement, the whole, or so much of each tract as will pay the tax, interest, and costs." The second section of the act of limitation is as follows: "Every real, possessory, ancestral, or mixed action, or writ of right, brought for the recovery of any lands, tenements, or hereditaments, of which any person may be possessed by actual residence thereon, having a connected title in law or equity deducible of record from this State or the United States, or from any public officer or other person authorized by the laws of the State to sell such land for the nonpayment of taxes, or from any sheriff, marshal, or other person authorized to sell such land upon execution, or any order, judgment, or decree of any court of record, shall be brought within seven years next after possession being taken as aforesaid." Rev. Stat. 1845, p. 349. Upon comparing this section with the acts of 1827 and 1829, upon the same subject, we have concluded that the [ 425 | section of the act of 1835 was not meant to give protection to a person in possession under a deed void upon the face of it. The mode of determining that, is to test the deed by making a reference to the authority recited in it for making the sale, in connection with the act giving the auditor the power to sell. When the sale is found not to be according to that power, the deed is void upon its face, because the action of the auditor is illegal, and the law presumes it to be known to a purchaser. The latter can acquire no title under it. Being a void deed, possession taken under it cannot be said to be adverse and under color of title. What was the fact in this case? It is disclosed upon the face of the deed, that the auditor sold the land short of the time prescribed by the act. It was not, then, a sale according to law. That must have been as well known by the purchaser, as it was by the auditor. The law presumes it to have been. The act under which the sale was made was not meant to prescribe the authority of the auditor only to make sales, but also to give to purchasers full information of the terms upon which a title could be Moore v. Brown. 11 H. acquired to lands sold for the non-payment of taxes. It was meant to put bidders at a tax sale upon the inquiry, whether or not the land was offered for sale according to law. If they do not examine, and shall buy land exposed to sale for taxes against the law, they do so at their own risk, and it will be presumed against them that they know that the deeds given under such circumstances are made in violation of official duty and of the law. It cannot be made the foundation of an adverse possession under color of title against the true owner of the land, whose title to it, the law says, can only be devested in a certain way for a failure to pay taxes due upon the land. We do not put the conclusion upon the point exclusively upon the fact that it is a void deed; but that it is so, being a deed made in violation of law. It is such a deed that the defendant proposes to use to let in the proof of a possession which will be protected by the statute of 1835. Upon general principles, such a paper would not be admissible as evidence for any purpose in ejectment, and we think it was not meant to be included as one of those titles of record provided for by the act of 1835. Before the limitation of the act can operate, it must be shown by one claiming its protection, that he has been in actual possession of the land to which it is sought to be applied for seven years before the commencement of the suit, by a connected title in law or equity, deducible of record from the State or the United States, or from any public officer or other person author ized by law to sell such land for the non-payment of taxes. [*426] Such language *does not apply to the general authority given by law to an officer to sell lands for taxes, but to what his authority is to sell the particular land for taxes which he exposes for sale. The words of the act are, to sell "such land for the nonpayment of taxes;" that is, that land which a party claims under the deed, and from his actual residence of seven years upon it. Can it be said, then, when the auditor, as he did in this instance, sells land for non-payment of taxes short of the time that the law authorizes him to sell, that he was an officer authorized to sell such land for the non-payment of taxes? We think not. This interpretation is more in harmony with the title which the act requires before its protection can attach. A title and seven years' actual residence upon the land are necessary. The legislature must have meant by title something more than a void deed upon its face; a title, at least, which would be sufficient to induce the possessor of the land to think, and the law to conclude, that there was a foundation for a possession under a right which had been acquired by a purchase. Not a mere naked possession, but one taken in good faith by a purchaser. The protection intended by the act cannot be better expressed than it is |