* 417

*No instance is remembered where the law does not permit the owner to pay the tax and charges upon his land at any time before a sale takes place. "He may arrest the uplifted hammer of the auctioneer, when the cry for sale is made, if it be done before a bona fide bid has been made.”1 It is evident, that a payment after sale can have no effect whatever.2

The payment of the tax, being matter in pais, may be proved by oral evidence; it is not necessary to introduce the collector's books or his receipt, (a) or produce the assessment roll, but the collector or other officer to whom the payment was made, the agent of the owner, or any person present at the time of the payment, are competent witnesses to prove the fact.3 [But the letters "Pd." on the county treasurer's book, opposite the taxes are not any evidence that the payment was before the sale. (b) So proof of a payment of the tax for the year 1795, is not admissible as tending to show a payment of the tax of 1817, for which land has been sold.1 (c)

after five years allow of its redemption and convey it accordingly, the transaction, by its very nature, discharges the public duty, rescinds the commissioners' title, and revests that of the next preceding owner. If a stranger thus redeems he discharges the public duty without acquiring the title for himself. (4 Watts & Serg. 298; 10 Penn. St. R.)

Without any further specification the counsel will understand that these principles affirm all the important rulings involved in the charge of the learned President of the Common Pleas, and in the offers of evidence. As to the rest it is sufficient to say that we do not perceive that there was any irrelevant or incompetent evidence admitted, or any questions of fact submitted to the jury without evidence, or any improper instructions given to them."

1 Early v. Doe, 16 How. (U. S.) 617, 618.

2 Collins v. Barclay, 7 Barr, 67; Purchase by a mortgagee at tax sale is not payment of the tax. Williams v. Townsend, 31 N. Y. 411:

(a) As to degree of certainty necessary in receipt as to amount and premises, see Daniels v. Burso, 40 Ill. 307.

Dennett v. Crocker, 8 Greenl. 239. The same principle was settled at nisi prius, in England, in an action upon a covenant "to pay all taxes and assessments upon the land," and is reported in Campbell or Espinasse, but the author is unable to make a special reference to the volume and page where it may be found, although he has cited it on several occasions at the bar.

(b) Nor are they evidence that the payment was made by the person in whose name the land was listed. Irwin v. Miller, 23 Ill. 401. The entry "paid " in county treasurer's books does not operate to discharge tax, and operates by way of estoppel only in favor of those actually misled. Ambler v. Clayton, 23 Iowa, 173. 4 Aukney v. Albright, 8 Har. (Penn.) 157.

(c) A purchaser of land sold for the taxes of a certain year is not entitled to

an injunction against the sale of the same property for the unpaid taxes of the preceding year. Cowell v. Washburn, 22 Cal. 519.

In order that the payment of the tax avail, it must be the same tax for which the land was sold, or the tax levied on the land that year, though it may be in a different name. Russel v. Werntz, 24 Penn. St. R. 337. A payment in an illegal and void currency is a nullity. Richards v. Stogsdell, 21 Ind. 74.

By the Vermont statute, payment must be in money only, and a payment by a town order is no discharge of the tax. Sawyer v. Springfield, 40 Vt. 305.

A sale in 1838 for taxes of 1801-7 was held void, the taxes being presumed to be paid after so long an interval, in default of positive proof to the contrary. But the act under which the sale took place was designed to give a remedy in behalf of persons who had paid taxes, which ought to have been paid by others, and not to collect a tax which had never been paid at all; and the claim for taxes was regarded by the court as a private debt. McLaughlin v. Kain, 45 Penn. St. R. 113.

CHAPTER XXVII.

OF THE EFFECT OF THE SALE AND DEED WHERE A REDEMPTION FROM THE SALE HAS BEEN MADE.

THE purchaser, whether he acquires an equitable title to the land evidenced by a certificate, or the legal estate by virtue of a deed of conveyance, takes the estate subject to all of the rights of redemption which are reserved by the statute under which the sale was made. His title is a conditional one. The sale may have been made, and all of the previous proceedings conducted in strict conformity with the law, and yet a redemption by the owner will defeat the contingent title of the purchaser. This is evident. The purchaser acquires his right to the estate under the same law which confers the privilege of redeeming upon the owner. That law is the source of his title, and by it his rights must be determined. If no redemption is effected, the estate becomes absolute in him.1

On the other hand, if the owner redeems, within the time and in the manner prescribed, the interest acquired by the sale is ipso facto gone for ever.2 Where a right of redemption is given to owners who labor under no disability whatever, the usual course is to deliver to the purchaser a certificate of the sale, which entitles him to a deed unless the redemption is seasonably made. But, sometimes a deed is executed and delivered to the purchaser immediately after the completion of the sale, or lodged in some public office as an escrow to take effect in case a redemption is not made. And where a deed 419 is made after the expiration of the ordinary period of

*

1 Cooper v. Brockway, 8 Watts, 163; Byington v. Rider, 9 Iowa, 566.

2 Blight v. Banks, 6 Mon. 206; Taylor v. Steele, 1 A. K. Marsh. 316.

redemption allowed to those who are not legally incapacitated to protect their own rights, it usually, in express terms, or by implication arising upon the construction of the deed compared with the law under which it was made, contains a condition, that the estate of the purchaser shall be defeated in case a redemption is made by an infant, feme covert, or lunatic, within a certain period of time after their respective disabilities are removed. (a)

Thus the Illinois Statute of January 26, 1826, prescribes the form of the deed to be executed, which form, after granting the land to the purchaser or his assigns, contains this clause, namely: "subject, however, to all the rights of redemption provided for by law." Whatever form the transaction is made to assume, by the particular statute under which the sale and deed are made, the substance of it is that the purchaser acquires a contingent title, dependent upon the non-redemption from the sale by those in whose favor the right is reserved.2

(a) Under the Arkansas statute, infants and married women have no longer time to redeem their lands than other non-resident owners of land. Smith v. Macon, 20 Ark. 17.

Under the Iowa statute, extending time in which minors may redeem, the minor must be the owner at the time of the sale; subsequently acquired ownership is not covered. Burton v. Hintrager, 18 Iowa, 348.

Under the Wisconsin statute, where minors, after sale for taxes but before conveyance, acquired by descent an equitable interest in land under an agreement of sale made with their ancestor by W., the owner, and the land was subsequently conveyed to them by W. in fulfilment of such agreement, they were held entitled to the extended time of redemption. Jones v. Collins, 16 Wisc. 594.

The language of the Iowa statute was "if the real property of any minor or lunatic is sold for taxes, the same may be redeemed," &c.

The language of the Wisconsin statute was "whenever the lands of minors shall be sold for taxes, the same shall be redeemed," &c.

2 The Illinois Statutes, being more familiar, are here inserted as illustrations of the general nature of these redemption laws. 1. The act of September 17, 1807, provides "That all persons shall be allowed two years to redeem their land; residents by paying the price it sold for with one hundred per cent thereon to the clerk of the Court of Common Pleas, in their respective counties; the non-residents by paying at the same rate to the auditor, which money the said clerks and auditor shall pay to the respective purchasers, their agents, or attorneys, whenever thereto required, and of the receipts of which they shall keep a record in their respective offices, which at all times shall be evidence sufficient to vacate the sales as aforesaid." (Pope's Statutes, 577, sec. 16.)

2. The statute of March 27, 1819, contained the same provision, with this

*

420 The question - Who may redeem? - is probably more important than any other connected with this subaddition, namely: "Provided always, that when any property sold for taxes by virtue of this act, shall belong to heirs, any of whom are not of lawful age, the same lands may be redeemed as aforesaid, at any time within one year after the youngest heir becomes of age." (Laws, 1819, p. 317, sec. 11.)

3. By the act of February 19, 1827, it was enacted that "Any lands which shall be sold by the auditor for the taxes and costs thereon, may be redeemed at any time within two years from the day on which the same were sold, by paying into the State treasury (upon the auditor's certificate, as in other cases) double the amount of the taxes, interest, and costs for which they were sold. Lands belonging at the time of sale wholly or in part to heirs under lawful age, may be redeemed at any time before the expiration of one year from the time when the youngest of said heirs becomes of full age; but no person shall be permitted to redeem any lands sold for taxes, unless he shall at the same time pay into the treasury all taxes which may have become due subsequently to such sale, together with interest thereon, at the rate of six per cent per annum, from the time they became due. Whenever any person or persons, after the expiration of two years from the time when any tract of land was sold for the taxes thereon, shall apply to the auditor to redeem such land under the provisions of this act relative to lands owned by minor heirs, it shall be incumbent on the person or persons so applying, to produce to the auditor a certificate from the judge, clerk, or other proper officer of the proper court having jurisdiction of wills and testaments, and intestate estates, that it appears from the records of said court that such person or persons are the legal heir or heirs of the former owner of said tract of land; and that said former owner died before the day on which said land was sold for taxes; and also certifying the real age of the youngest of said heirs. In cases where there has been no will, nor any settlement of the intestate estate before the court to which such jurisdiction appertains, such heir or heirs shall go before some court of record, and exhibit proof of his, her, or their heirship, minority, and present age; and on producing the certificate of the clerk of such court to the above facts, such heir or heirs shall be entitled to the same rights of redemption as above provided. Such certificate shall bear the signature of the clerk of the court, the genuineness of whose authentication shall be certified by the judge, and the official character of such judge shall be certified by the secretary of the State in which such proof shall be exhibited, with the seal of said State affixed to such certificate. Whenever any heir shall redeem any land as aforesaid, the written evidence on which his right to redeem the same is founded, shall be delivered to the auditor, and by him filed in his office."

4. The act of February 27, 1833, thus provided: "Any lands which may be sold at any time as aforesaid, for taxes, interest, and costs due thereon and unpaid, may be redeemed at any time within two years from the date of such sale by paying to the clerk of the county commissioners' court of the proper county, for the use of the purchaser or purchasers, double the amount of the taxes, interest, and costs for which the same may have been sold. Lands that may belong at the time of such sale, in the whole or in part to heirs under lawful age, may be redeemed at any time before the expiration of one year from the time the youngest of said heirs shall become of full and lawful age; but no person shall be permitted