Page:Federal Reporter, 1st Series, Volume 3.djvu/713

706 FBBEBAL BEPOBTEB. �bill contaÎHS sufiScîent equity to sustain a recovery for taxes paid and improvements, and the parties have stipulated as to the amount. The suocess of the plaintiff in that suit must be determined by the action at law. The plaintiff in the first action mUst recover, if at ail, on the strength of his legal title. �The case turns upon the effect of the tax deed to the de- fendant's grantor. The plaintiff proved his title by patent and successive deeds under it, down to himself, and he is entitled to recover thô possession of the property, unless the tax deed, without further preliminary proof , is prima fade evidence of title in Jaggers. Gen. St., c. 11, § 124, in sub- stance provides that -when lands, delinquent for non-payment of taxes, are offered for sale at publie auction, "and not pur- chased by any person, * * * shall be struck off to and become forfeited to the state ;" and section 137, that at the expiration of two years from the date of forfeiture lands so forfeited and not redeemed become "the absolute property of the state, without further act or ceremony whatever," and were subject to "be disposed of for cash, at public or private sale, as the state auditor might direct;" and section 138, under which the county auditor executed the deed to the de- fendant's grantor, and ■which he claims vests the title in him, provides that, "upon the sale of any sucb land or lots by the state, the county auditor of the county in which the lands lie shall execute a deed of conveyance thereof to the purchaser, which shall vest in the grantee, his heirs or assigns, a good and valid title in law and equity, and be prima facie evidence thereof in ail the courts of this state." �The jurisdiction of the county auditor, or his power to execute "a deed" which should vest "a good and legal title," and be prima fade evidence of the same, depends upon a sale directed by the state auditor. I think the settled au- thority in this state, under the statute urged by the defend- ant, and similar legislative enaotments, where the faets specially relied on are pleaded, is that the person relying upon the tax deed as ^rima /acie evidence of title must first prove the county auditor had authority to make the deed; ����