larity, that is, on the ground of its being void, the sale itself is void, even in the hands of an innocent purchaser. But if the process be merely erroneous, as when it was issued, formerly, without a scire facias, after a year and a day from the docketing of the judgment; or when, under the present practice, it is issued after five years from the rendering of the judgment, without leave of the court, the process is only voidable on the application of the party, and the sale is good, and cannot be questioned as against a bona fide purchaser. (Id. Jackson v. Bartlett, 8 John. 361. Same v. DeLancy, 13 id. 537.)

We have seen already that the sheriff, in advertising real property for sale, must describe it with common certainty. In his deed to the purchaser, nothing passes under a general description of "all other the land &c. of the defendant," for the sheriff cannot sell under so vague a description. In short, he can sell nothing which the creditor cannot enable him to describe with reasonable certainty. (Jackson v. DeLancy, 13 id. 537.)

The purchaser acquires nothing but a lien before the time of redemption has expired. (Vaughn v. Ely, 4 Barb. 159.) And the debtor is left in the use and enjoyment of the property during the fifteen months; and his title is not devested until the expiration of that time. But if the real estate sold is not redeemed within that time, and the sheriff executes to the purchaser a deed of the same, in pursuance of the sale, the grantee in such deed is deemed vested with the legal estate, from the time of the sale on the execution, for the purpose of maintaining an action for any injury to such real estate. (2 R. S. 373, § 78. 3 id. 655, 5th ed. Rich v. Baker, 3 Den. 79. Boyd v. Hoyt, 5 Paige, 65. Talbot v. Chamberlain, 3 id. 219. 2 R. S. 337, § 23.) The statute thus wisely converts the fiction of a title by relation to the time of the sale, into an instrument of justice.

The deed of the sheriff should recite the judgment and execution, showing the time when the lien attached, the sale and purchase, and redemption, if any, and then, in consideration thereof, and of the payment of the sum bid and paid, and of the statute in such case made and provided, should grant and convey unto the grantee, his heirs and assigns forever, all the estate, right, title and interest, which the judgment debtor had in the premises on

the day of the docketing of the said judgment, or at any time afterwards. It should contain a full and accurate description of the premises. It should be proved or acknowledged like other deeds, and recorded in the clerk's office of the county where the lands are situated.

The sale of lands for taxes by the comptroller, occasions the alienation, every year, of large tracts of land. It is not proposed to analyze the laws on this subject as they have been repeatedly modified. The act of 1850, amending the revised statutes, (1 R. S. 411, § 81,) enacts, that conveyances of lands sold for taxes shall be executed by the comptroller, under his hand and seal, and the execution thereof shall be witnessed by the deputy comptroller, state engineer and surveyor or treasurer, and every conveyance of land sold for taxes heretofore or hereafter executed by the comptroller, either in his own name or in the name of the people of this state, shall be presumptive evidence that the comptroller had authority to sell and convey the land described in it, for arrears of taxes charged thereon, and that all proceedings, things and notices required by law to be had, done or given, prior to the execution of such conveyances by the comptroller, have been had, done and given, as required by law; but such presumption may be rebutted by legal evidence. But this section shall not be applicable to any such conveyance, in case the grantee therein or those claiming under him shall neglect or refuse to release to the owner, occupant or claimant of the premises described therein, or any part thereof, said premises, upon being paid, or upon a tender thereof made, the purchase money named in said conveyance, with interest at the rate of ten per cent per annum, and the costs of any suit commenced for the recovery of the said premises, or any part thereof. (L. of 1850, ch. 183, § 81. See Tallman v. White, 2 Comst. 66, which arose before the 81st section was amended.)

The revised statutes, before their amendment in 1850, made the comptroller's deed conclusive evidence of the regularity of the sale. This conclusiveness has been held only to apply to the proceedings to be had after the right and power to sell are acquired. It is not conclusive or even presumptive evidence of the regularity of the assessment. (Tallman v. White, supra.)

There are a variety of cases where the real estate is bound by corporation assessments or by taxes. (Mayor of Troy v. The Mu

tual Bank, 6 Smith, 387.) In some cases, it is presumed, the statute provides for the effect of the deed given on a sale for nonpayment of taxes or assessments. If there be no provision in the act, the common law must prevail. In the absence of any legislation on the subject, the purchaser is bound to inquire into the authority of the officer who sells, and if that is insufficient the sale is void. Analogous questions have repeatedly arisen and been decided in conformity to this view of the subject, by the supreme court of the United States. (Stead's Ex'rs v. Course, 4 Cranch, 403. Williams v. Peyton's Lessee, 4 Wheat. 77.) The general principle is, in the case of a naked power not coupled with an interest, that every prerequisite to the exercise of the power should precede it. The party who sets up a title must furnish the evidence necessary to support it. If the validity of a deed depends on an act in pais, the party claiming under it is as much bound to prove the performance of the act, as he would be bound to prove any matter of record on which the validity of the deed may depend. For example, if the lands be sold for the non-payment of taxes, the marshal's deed is not evidence, even prima facie, that the prerequisites required by law have been complied with; but the party claiming under it must show positively that they have been complied with. (Williams v. Peyton's Lessee, supra.)

The rule is substantially the same in this state. The recitals in the deed given on such sale are not evidence of the facts stated in them. (Jackson v. Shepard, 9 Cowen, 88. Jackson v. Esty, 7

Wend. 148.

Leland v. Bennett, 5 Hill, 286. Bush v. Davison,

16 Wend. 550. Varick v. Tallman, 2 Barb. 113.)

CHAPTER VIII.

OF ALIENATION OF REAL PROPERTY THROUGH THE EXERCISE OF THE RIGHT OF EMINENT DOMAIN.

The right of eminent domain is defined to be the ultimate right of the sovereign power to appropriate not only the public property but the private property of all persons within the territorial sovereignty, to public purposes. (Vattel's Law of Nations, book 1, ch. 20, § 244, approved by Story, J. in Charles River Bridge v. Warren Bridge, 11 Peters, 641.) No civilized state can exist without

the enjoyment of this right. The various improvements which are essential to the well being and prosperity of a community rest upon it. Without it, public highways, turnpike roads, rail roads and canals, and the various public buildings which are needed for the convenience of the administration of justice, or of the public charities of the country, could not be made and preserved. If government was required, in every case, to obtain the assent of the owner of real estate, which might be wanted for any of these purposes, or for fortifications, it would be subjected to intolerable delays, and to gross and unreasonable exactions, or be obstructed altogether.

The necessity for some provision on this subject, as well for the public as for the security of individuals, was foreseen at an early day, and accordingly it was provided by the fifth amendment to the constitution of the United States, that private property shall not be taken for public use, without just compensation. This provision is supposed not to embrace cases arising under the state governments, but to be applicable solely to such as arise under the general government. (Barron v. Mayor of Baltimore, 7 Pet. 243. Livingston v. Mayor of New York, 8 Wend. 85. 2 Cowen, 818.) It assumes that government had the right already from the nature of sovereignty, and it was designed to impose the limitation of just compensation upon the exercise of the right. The constitution of this state, while it asserts the original and ultimate property in all lands within its jurisdiction, to be in the people, contains the same limitation as to the powers of the government to take private property for public use, as is contained in the amendment to the constitution of the United States, already referred to. It is in truth merely the assertion of a great principle, which governs the actions of all enlightened governments.

There never has been any doubt with respect to the exercise of the right of eminent domain in this state, when the property was to be applied for the public use, unconnected with individual profit. The taking of land without the consent of the owner, for the purpose of laying out highways, and the erection of bridges, and of gravel and other materials for their construction and reparation, was exercised as a right before the constitution was formed, and was regulated by statute. Nor was the right questioned to lay out a private way for an individual occupant. The necessity for the road, in all cases, had to be determined by local officers chosen by the people, and suitable provision was contained in the various statWILL.-30

utes on the subject, for making compensation to the owner for the easement thus obtained. These laws existed in the time of the colony, and have continued without interruption as to the principle involved, to the present day. (2 Laws of N. Y. 664, § 19, Van Sch. ed. Id. 723, § 2. 1 Laws of N. Y. 139, 141, §§ 2, 13, Jones & Varick's ed. Laws of 1784. 1 Greenl. 108, § 13. 2 R. L. of 1813, p. 276, § 20. 1 R. S. 517, §§ 77, 79. 2 id. 402, 403, 5th ed.) These laws above referred to cover the entire period from 1772 to the present day.

In the case of Taylor v. Porter, (4 Hill, 140,) it was decided by a majority of the supreme court, that the statute of 1830, authorizing a private road to be laid out over the lands of a person without his consent, is unconstitutional and void. The chief justice dissented from the decision, and supported his views by reasoning which has never been answered. The decision itself took the public by surprise, and its correctness was very generally denied. This decision was, in 1846, brought to the notice of the convention then in session to revise the constitution. (Atlas ed. 103.) The constitution, as adopted in that year, contains a provision that private roads may be opened in the manner to be prescribed by law, the necessity for the road and the amount of all damages to be sustained by the opening of it, being first determined by a jury of freeholders. (Const. of 1846, Art. 1, § 7.)

The same principle was made applicable to lands taken for turnpike roads, and the bridges connected with them. The charters of the early companies contained suitable provisions on this subject, and at length, in 1807, a general act was passed, (1 R. L. 231, § 3,) authorizing the company to enter upon the land for the purpose of making the road, if no person was living on the land who had authority to receive the damages; but the title to the land was not vested in the company, even for the purpose of the road, during the existence of the charter, until actual payment of the damages, and the moment the owner made proper demand of the damages, and the same were not paid, he might bring an action for the recovery of the land. (Meserole v. The Mayor of Brooklyn, 8 Paige. 198.)

A turnpike road being a substitute for the former highway, and being open for all to travel on, was deemed a public road for all purposes. It was never seriously doubted that the legislature had the power, even after the adoption of the constitution of 1821, to authorize the taking of land for a turnpike, without the consent of