LIBERTY BILLINGS, APPELLANT,

v.

GUSTAVE STARK, RESPONDENT

*301RANDALL, C. J.,

delivered the opinion of the court.

Had the defendant rested upon the plaintiff’s showing, the verdict could not have been disturbed. The certificate of the Clerk of the Board of Tax Commissioners is not made evidence of the sale of lands for taxes. The act of Congress makes the certificate of the commissioners evidence of the sale. "When the defendant introduced a certified copy of the tax certificate, of the date of June, 1863, he had supplied the necessary link in the plaintiff’s testimony by which his case was pri/ma facie made out. The defendant’s counsel insists that the plaintiff is not entitled to the benefit of the certificate of sale, introduced by the defendant in connection with other papers, but the rule is otherwise. If the whole record contain evidence sufficient to make the plaintiff’s ease, he is entitled to it, though introduced by the defendant, even as the defendant is entitled to use any evidence produced by the plaintiff. The case stands upon the whole evidence before the court.

The certificate of the tax sale to Eobinson, signed by the direct tax commissioners, and the deed from Eobinson to Billings, made a case upon which the plaintiff was entitled to recover, unless this title was overthrown by the evidence on the part of the defendant.

The defendant, in order to defeat .the plaintiff’s right of recovery, introduced his evidence of title from the Florida Eailroad Company, in 1856, down to the deed of the Acostas, in 1867, to the wife of the defendant.

It was objected to the deed executed by George W. Call, as attorney of Soulter and McEae, trustees, that the deed was of no effect because the trustees had no authority to act by attorney, there being no express powers to appoint an attorney-in-fact in the deed of trust; and this is a prominent point made in the assignment of ei’rors. In view of the whole sale, however, we will not dissect the deed of trust at this time to ascertain the scope of the authority of the trustees, for it makes no difference in the result. The *302defendant is in possession, and the plaintiff’s right depends upon the tax sale, while the defendant’s rights, as against the plaintiff, do not depend upon the validity of his former title.

And so the evidence of title offered on the part of the defendant was superfluous and irrelevant to his defence.

The fourth section of the act of Congress of June 7,1862, “for the collection of direct taxes in insurrectionary districts within the United States,'and for other purposes,” reads as follows: “That the title of, in, and1 to each and every piece or parcel of land upon which said tax has not been paid, as above provided, shall thereupon become forfeited to the United States, and, upon the sale hereinafter provided, shall vest in the United States, or in the purchasers at such sale, in fee simple, free and discharged from all prior liens, incumbrances, right, title, and claim whatsoever.”

The sale of the property in controversy was made by the tax commissioners because of the non-payment of a’ tax levied in pursuance of this law. The validity of the act of Congress is not called in question upon the argument as to the whole or any part of its provisions. The sale having been made, and the certificate given as required by law, the purchaser was invested with the title, “ free and discharged from all prior liens, incumbrances, right, title, and claim whatsoever;” and, by the seventh section, “the certificate shall be received in-all courts and places as pruna facie evidence of the regularity and validity of the sale, and of the title of the said purchaser,” subject to the right to redeem by the former owner, or others having an interest, within the time prescribed by law.

And we repeat that the plaintiff’s case, resting upon the tax sale and the deed from the purchaser, is not met by the evidence of a former title. The defendant must defeat the plaintiff’s case by showing that the assessment and sale were .not made in conformity to law, “ that the property was not subject to taxes, or that the taxes had been paid previous to *303sale, or that the property had been redeemed according to the provisions of this act.” (See last paragraph of Section 7.)

A certificate of sale, signed by two of the tax commissioners instead of three, is held by the Supreme Court of the United States to be valid, as though it had been signed by the three. (12 Wallace, 398.) This decision is conclusive upon this court.

The testimony as to the non-concurrence of the third commissioner in the assessment, notice, and sale, as given in the record, does not invalidate the proceedings.. The neglect or refusal of one of the members of the Board to- act, or his disapproval of the acts of the majority of the board, cannot affect the validity of the acts of the majority. Any other rule would make the legality of their proceedings entirely dependent upon the caprice or contumacy of the minority.

The respondent insists that the sale in June, 1863, and the certificate, were annulled and set aside by the Treasury Department at Washington, and that therefore the certificate and the sale became null.

The transcript of the proceedings of the Treasury Department does not show that any order was made setting aside that sale. The opinion of the Commissioner of Internal Eevenue that the sale was irregular and void by reason of certain facts stated to him by the dissenting tax commissioner, is merely an opinion, and is not sustained by the Supreme Court in the case above cited; and, indeed, if the purchaser at that sale had any rights of property under it, we are not aware of any power in the Treasury Department competent to divest him or his grantee of such rights.

Upon the pronouncing of that opinion by the Internal Eevenue Commissioner, it appears.that the tax commissioners again advertised and sold the same property for the tax that another person purchased at the last sale, and that the property was redeemed from this sale.-

Whether Eobinson, the purchaser at the sale in June, *3041863, on learning that the government “repudiated” that sale, surrendering the certificate of sale and receiving back the money from the commissioners, and becoming a purchaser at the second sale, may thereby be estopped in law, or in equity, from setting up any title in himself under that certificate, is not a question here. He had conveyed to Billings before he surrendered the certificate, accordihg to the evidence, and his surrender of the certificate could not affect the title of Billings, if he had any title. It appears that there were included in the same certificate a large number of lots purchased at the same sale; and if all the lots so included were not conveyed by Robinson to Billings, this may account for the retention of the certificate by Robinson, instead of passing it over to Billings, and his subsequent surrender of it to the commissioners. The proceedings had, as shown, and the subsequent sale, do not affect the vested rights of the parties in interest, unless they assented" to the proceedings, of which there is no evidence.

The counsel for respondent refers to an authority to show the effect of the surrender of a patent. On referring to the case (found in 1 Black, U. S.,) it is found that it treats of a patent issued under the laws regulating patent rights, and not to a title to lands.

The respondent insists, in his argument, that there is no evidence that the plaintiff acquired any rights prior to the surrender of the certificate. "We do not understand that the respondent intends to impeach the integrity of his witness, Robinson, by insisting that Robinson, for a consideration, conveyed to Billings after he had surrendered this certificate and received the money for it. On the contrary, the testimony of Robinson and Billings both shows that Billings had left with Robinson money .to be invested in the sales to take place in June, 1863; that it was so used; that Sticknev, the third and dissenting commissioner, had urged Billings to purchase at this sale; that, within thirty days after it, Robinson executed his deed to Billings of the *305lot in question, with other lots, which deed was left by Robinson in a store with a partner; and that Billings received the deed at Beaufort. Robinson states that Billings wrote to him to select the lots and send him the deed; that his impression was that he gave to plaintiff a mere quit-claim deed; that he “did not send it,” but “left it in the store;” but he does not say that it was not sent or delivered to Billings with his consent or by his directions; nor is there any evidence that Billings ever knew of Robinson’s surrender of the certificate ; but it does appear that Robinson did not return to Billings the money consideration for the deed of this lot. That Robinson acted as the agent of Billings, in purchasing the lot, seems quite clear. A deed in the possession of the grantee, purporting to have been executed and delivered at a given date, is presumed to have been duly delivered to the grantee at the time named.

So far as the evidence in this record goes to the point, the proof of the execution and delivery of the deed at about the' time of its date; that the lots were purchased for Billings, with his money, by Robinson, and conveyed for that reason to Billings, are prima facie established. (We comment upon this matter only because the point was argued before this court.)

The charge of the court, as contained in the record, is entirely sustained by what we have already said, except as to a single point. The court charged that “if the jury find, from the evidence, that plaintiff did pot record his title in the records of Nassau county until after the purchase of the property by Mrs. G-. Stark, and believe, from the evidence, that she had no notice of the title of the plaintiff, the conveyance of C. L. Robinson to the plaintiff would not be good or effectual, as against her, if she purchased for a valuable consideration.”

This is the only portion of the charge excepted' to by the plaintiff. The recording acts provide that no conveyance of real propérty shall be good in law, or in equity, against *306creditors or subsequent purchasers for a valuable consideration, and without notice, unless the same be recorded in the office assigned by law for that purpose. The court misapprehended the purpose of the act in applying it to this case. The object of the law was to prevent fraud by parties concealing the fact of a conveyance and making a subsequent conveyance to a bona fide purchaser without notice. Had the deed of the plaintiff proceeded from the same grantor who subsequently conveyed to Mrs. Stark, the prior deed not being recorded, the statute would apply. But the plaintiff derives his title, if he has any, from the government through its power to collect revenue. No conveyance can be made by a'former owner which will relieve property from the payment of taxes, or defeat a title lawfully acquired from the government -through forfeiture and sale for taxes. The recording acts were not intended to promote, but to prevent fraud.

It is evident that the jury were misled by this instruction.

The judgment must be reversed, and a new trial granted.