CHAPTER XXVI.

OF THE EFFECT OF THE SALE AND DEED, WHERE THE TAXES HAVE BEEN PAID BEFORE THE SALE.

THE delinquency of the owner is the essential fact upon which the power of sale rests. The authority of the government extends only to those cases where the owner neglects to pay the tax in arrear voluntarily. When this neglect is shown, the coercive remedies of the law may be resorted to, and not before. The law in substance declares, that the tax assessed shall constitute a lien upon the land, and if the tax is not paid within a specified time, the officer charged with the duty is authorized to sell. The right to sell is therefore founded on the fact of the non-payment of the tax. If the tax be paid before the sale, the lien of the State is discharged, and the right to sell no longer exists. When the owner has performed all of his duties to the government, no court would sanction, under any circumstances, the forfeiture of his rights of property. The law was intended to operate upon the unwilling and the negligent citizen alone. Legislative power extends no further. The sale involves an assertion by the officer that the taxes are due and unpaid, and the purchaser relies upon this, or on his own investigations, and his title depends upon its truth. The title of the purchaser is contingent, so far as it may be affected by proof establishing the fact that the tax had been paid before the sale was made. This is an implied condition, annexed to every grant of this kind, founded on a sound construction of the law, the power of the government in collecting taxes, and the principles of natural justice. The constitution and the ordinary law, he is bound to know, and justice is prcsumed to have a lodgment in the breast of every man * 413

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-even in that of a purchaser at a tax sale, who is said to have "but little conscience."

Therefore, every purchaser takes a deed subject to the condition that the taxes have not been paid, and if his title is defeated, he must look to the government for that relief which such a case may require. The return of the delinquent list will justify a sale by the officer, unless the taxes were paid to him in person, or he had knowledge of the fact of payment, but as between the owner and purchaser, the return is not conclusive evidence of the fact of non-payment. The validity of the sale and conveyance necessarily depending upon the fact of delinquency, when this is drawn in question, it is competent to prove payment; and in permitting the owner to make this proof, no rule of law is violated; it is not permitting parol evidence to impugn or destroy a written contract, but it is consistent with the deed; and if the deed is thereby defeated, it arises upon the proof of a fact, upon which, by law, the operation of the deed was made to depend, at the very time of its execution. It would be a monstrous doctrine to hold otherwise.1 (a)

The same principle is applied to a sheriff's sale under execution; there it is held that a sale, based upon a satisfied judgment, is absolutely void; 2 though in one case it was held, that a sale to a bona fide purchaser would be sustained unless the satisfaction appeared of record. The tenacity with which the courts adhere to the doctrine that a sale and deed are nullities, where the taxes were in fact paid prior to the sale, is most

1 Curry v. Hinman, 11 Ill. 420; Jackson v. Morse, 18 Johns. 441; Blight v. Banks, 6 Mon. 206; Rowland v. Doty, 1 Harring. 3, 11; Hunter v. Cochran, 3 Barr, 105; Dougherty v. Dickey, 4 Watts & Serg. 146; Stanley v. Smith, 1 Car. Law, 511; s. c. Bat. Ed. 124; Aukney v. Albright, 8 Har. (Penn.) 157.

(a) When a tract of land is assessed for the taxes of several years, and the taxes have been paid for one or more of the years, but the land is sold for the whole amount assessed, this renders the sale void. Kinsworthy v. Mitchell, 21 Ark. 145.

Though the land is assessed in another name, a tender by the owner will prevent a valid sale. Kinsworthy v. Austin, 23 Ark. 375.

A collector has no power to receive payment of tax before it is assessed; and where, subsequent to such payment, a new collector is appointed who proceeds to assess and sell, equity will not enjoin the sale. Cossart v. Spence, 23 Ark. 374.

2 6 Ohio, 430; 4 Wend. 474.

3 1 Cow. 622.

strikingly illustrated by the cases of Rowland v. Doty, Jackson v. * Morse, and Curry v. Hinman, to which the * 414 reader is referred - they are the leading cases upon this

point. (a)

Where a tract of land containing 390 acres, was owned in common, and one of the cotenants listed an undivided third in his own name, and duly paid the tax due upon his share, and the whole tract was listed the same year as the property of the other tenant, and sold for the tax assessed upon it, the sale was held void. Two surveys interfered, and the owner of the junior survey paid the taxes due upon his entire tract, which of course included a part of the elder survey; afterwards, the land embraced in the senior survey was sold for taxes, and it was held that no title passed by the sale to any part of the interference.2 It has been held that where, by the mistake of the land-owner himself, he pays the tax upon a tract of land which does not belong to him, and was not assessed in his name, the sale, under such circumstances, is legal.3

On the other hand, where the owner pays upon the right tract, but the money thus paid to discharge the lien upon his own land, is appropriated, by the mistake of the officer, to another tract, this was held to be a valid payment, and the sale

(a) After a decree of foreclosure under the Iowa statute, it is too late to show payment of tax. Gaylord v. Scarff, 6 Clarke (Iowa), 179. So after a judgment for the tax in Pennsylvania. Cadmus v. Jackson, 52 Penn. 295.

1 Jones v. Gibson, 2 Taylor (N. C.), 41.

2 Hunter v. Cochran, 3 Barr, 105.

8 Stephens v. Wells, 6 Watts, 325. [If a stranger without title, pays taxes on a part of a tract of unseated land, without defining its location or boundaries, it will not defeat the title of the purchasers of the whole tract. Crum v. Burke, 1 Casey (Penn.), 377. In Pennsylvania, by act of 1862, No. 233, in case of a sale of unseated land for taxes, which may be interfered with by the title or survey of other claimants, the latter may, within two years after the sale, pay to the county treasurer the amount of the tax assessed upon so much of the land as is included in his claim, and the costs, together with the additional twenty-five per cent on the same, equal to the proportionate part so included within his claim, which shall be a redemption as effectual for the amount within his lines of claim, as if it had been for all the land within the lines of said interference.] That equity will not relieve against such mistake, see Moss v. Mayo, 23 Cal. 421.

of the land void.1 (a) [Payment of the tax to an officer * 415 not * authorized by the law to receive it of the taxpayer (as to the treasurer instead of the collector), will

1 Dougherty v. Dickey, 4 Watts & Serg. 146. The author is indebted to Judge Lowrie, of Pennsylvania, for the following copy of a very able opinion recently delivered by him in the Supreme Court of that State, and which has not yet been reported. A part of the opinion sustains the doctrine of the text, relative to the misapplication of the payment of a tax, and the residue will be interesting and useful to the bench and the bar. The case referred to is that of Laird v. Heister. [Since reported in 12 Har. (Penn.) 452.] Lowrie, J.: "It is important to notice that the laws to enforce the payment of taxes on unseated lands, give no directions at all relative to the mode in which any of the tax books shall be kept, except so far as they are involved in the general direction, that such land shall be valued and assessed in the same manner as other property.' And though some directions are given for advertising, yet, even in this, irregularities are declared not to affect the sales; and then there is, besides, a general declaration that no irregularities in the assessment, process, or otherwise, shall be allowed to affect the title of the purchaser. Taking this thought with us in reading these laws, we readily discover the following, which are ruling principles in the pres

ent cause:

1. The forms in which assessments of unseated lands are made and entered, and the mode of certifying or transmitting them to the county treasurer, are matters of official practice entirely at the discretion of the commissioners of the several counties, subject only to the condition of being intelligible; and they must be expected to be very various. This is merely an expression of the principle that allows all sorts of public functionaries to adopt and direct their own forms of fulfilling their duties, in cases wherein they are not fully and adequately directed by law. It was overlooked when it was attempted (3 Watts, 260) to indicate the form in which unseated land taxes ought to appear in the commissioners' office, and the attempt has given rise to some confusion.

2. The authority of the treasurer to sell unseated land for taxes, depends upon the facts that the land was unseated at the time of the assessment; that a tax appears to have been, and was in fact, assessed upon it by the proper officers; and that the tax has been due for one whole year, and remains unpaid. The absence of either of these facts involves exemption from the penalties of the acts of 1804 and 1815.

3. This authority has been restricted by construction, in some instances, for the protection of innocent persons who, relying on the customary forms of taxation, may have been led into the mistaken supposition that there was no tax charged upon the land, but only against the owner personally. (3 Watts, 260; 4 Watts & Serg. 133; 8 Penn. St. 169; 14 Penn. St. 404.)

4. The tax books in the offices of the commissioners and treasurer are not intended to give notice of the liability of land for taxes, but are merely the mode in

(a) In absence of fraudulent collusion, it will not avail as against tax title after decree of foreclosure that owner of land was told by county treasurer that no tax was assessed on the land. McGahen v. Carr, 6 Clarke (Iowa), 331.

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not render the subsequent sale void, although the duty * 416 of the collector would have been, upon receipt of the money, to have paid it over to the same treasurer.1]

which the tax accounts are kept; and they are opened to be corrected or proved erroneous, when any interests depend upon the facts expressed by them.

5. Placing land taxes on the collectors' duplicates is not of itself a declaration by the taxing officers that the land is seated, and has no tendency to mislead any one into the supposition that the land is not to be charged as unseated; though a departure from a well known usage in this regard has been allowed such an effect. If the law had made the tax lists instead of the tax laws, notice to the world of the liability of land for taxes, then, of course, the tax lists would need to possess those qualities of certainty and completeness that are appropriate to their function of giving notice. They do not give notice of the liability, but merely define its amount. And if they were to stand for notice, then they ought to affect both parties; but no matter how full, complete, and regular may be all the entries, they furnish no foundation for the faith of purchasers that is not swept away by proof that the taxes were really paid, or that the land was seated; nor do they bind the person if the land is in fact unseated. If we say that a tax on land is no lien upon it unless it appears in the list as unseated, or is placed upon an unseated list, then the tax is good for nothing; for, being actually unseated, the owner is not personally liable for it.

6. The purpose of an inquiry into the mode in which the tax books are kept in any county is generally to show how they ought to be understood by the court and jury; and it is relevant to notice the usages of the office in keeping them, prior and up to the time of the entry, that is to be interrupted; but when a new usage has been introduced, the old ones may cast no light upon the entries made under it.

7. When the owner of an unseated tract of land goes to the treasurer and offers to pay to him all the taxes upon it, and does pay the amount demanded by him, and the treasurer credits the payment to another tract and sells this, it is a good payment, and the sale is void. The unseated land laws are intended to enforce the payment of taxes, and their purpose is fulfilled when the duty is performed. If a man has really and in good faith performed his duty herein to the satisfaction of the proper officers, his land is safe. If it be sold after that, it is through the error of some officer which cannot be visited on the owner; for the State does not mean that the owners of unseated lands shall warrant the fidelity or competency of its officers. The sale involves an assertion by the treasurer that the taxes are unpaid, and the purchaser relies upon this, or on his own investigations, and his title depends upon its truth.

8. When the commissioners purchase unseated land for taxes duly assessed and unpaid, the provisions of the law, curing all irregularities in the assessment and process, and giving five years for redemption, are as ample a protection to their title as that which is furnished for other cases, by the limitation in the acts of 1804 and 1824.

9. When the commissioners do thus purchase unseated land, and within or

1 Young v. King, 3 R. I. 196.