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improved or unimproved property, or so much thereof

not less than one lot, as may be necessary to pay the * 292 taxes, &c., may be sold, &c. ;" and still another act passed May 26, 1824, provided "that it shall be lawful for the said corporation, where there shall be a number of lots assessed to the same person or persons, to sell one or more of such lots for the taxes and expenses due on the whole; and also to provide for the sale of any part of a lot, for the taxes and expenses due on said lot, or other lots assessed to the same person, as may appear expedient, according to such rules and regulations as the said corporation may prescribe."

In Mason v. Fearson, which was an action of ejectment, the defendant claimed under a tax sale, purporting to have been made in pursuance of the foregoing acts of Congress. The facts were that twenty lots had been separately listed in the name of the "Washington Tontine Co." The whole were appraised at $1,783; the tax assessed upon them was $64.94; they were all sold separately, the entire proceeds of the sale were $705; and the lots first and secondly offered brought $85, which was more than sufficient to pay the taxes and expenses of the whole list. The court held the sale void, upon the ground that the first two lots offered having been sold for more than enough to discharge the tax due upon all, a further sale was not only unnecessary, but a great sacrifice of the property of the company, and that the law according to the intimation in the Corporation of Washington v. Pratt, and the language of the act of 1824, not only permitted the collector to stop the sale when the bids covered the taxes and expenses due upon all of the lots, but that it was his imperative duty to do so. It was contended by the counsel in support of the tax title, " that the law allowed a discretion in the city to sell each lot for the tax on each; and that in the exercise of this discretion, the sale of all can be vindicated as legal; that the intention was not to give a power which the city must, but which they might exercise; and that the owners might have saved their property by redeeming from the sale." To which the court reply: * 293 "1. That it was the design of congress to prevent sacri

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19 How. (U. S.) 248. See Thompson v. Carroll, 22 How. (U. S.) 422.

fice and speculation. 2. That what a public corporation or officer is empowered to do for others, and it is beneficial to them to have done, the law holds ought to be done; the word ' may,' in such cases is imperative, and not permissive merely. 3. That the argument that the owners might have preserved their rights by redemption, is entitled to but little force, when the same oversight, accident, or misfortune which prevented the seasonable payment of the tax, would probably defeat a redemption; and when the argument, if sound, would apply to every other defect in a tax sale; if such views were to prevail, the only remedy of the owner, against an illegal sale of his property, would be to redeem from it. But instead of such a loose constructive leniency towards a purchaser under a special law, it is well settled, that where a tax title is to be made out by a party under such a law, as by the defendant in this case, it must be done in all material particulars, fully and clearly. In the language of some of the cases, it must be done strictly,' 'exactly,'' with great strictness.' The purchaser setting up a new title in hostility to the former owner, is not to be favored, and should have looked into it with care before buying, and not expect to disturb or defeat old rights of freehold, without showing a rigid compliance with all the material requisitions of the law under which the sale was made." Such was the reasoning of the lamented judge Woodbury, in favor of that rule of strictness which has been almost universally adopted by the courts of this country in the investigation of tax titles, and it furnishes a complete refutation of the only arguments ever advanced by any court in favor of their validity, when the proceedings were manifestly irregular, namely, that the "government must collect her revenue," "let the owner pay his taxes promptly, or redeem from the sale." (a)

No one denies that the necessities of the State demand a periodical and adequate supply of revenue; that she possesses the power to assess it; that it is the duty of the citizen to pay

(a) Where a part-owner of a tract had paid a part of the tax without designating the number of acres claimed by him, a sale of the residue on which no payment had been made for the unpaid balance of the tax, was held sufficiently certain. Wells v. Burbank, 17 N. H. 393.

it, and that promptly; that if he fails in the performance of this duty, the State has a right to resort to adequate coer

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cive remedies; that the sale and conveyance of the *294 land of the delinquent to one who is willing to advance

the tax, is a legitimate exercise of sovereign power; that such a sale and conveyance will, if regularly made, vest an absolute title in the grantee, as complete and perfect in all respects, as a grant by the Federal government of a part of the public domain. But the great difficulty is that the State, in the exercise of her sovereign power of taxation, has always seen proper to prescribe the mode and manner of selling the lands of delinquents, and in such language as to make a close adherence to the terms of the power, conditions precedent to the validity of the sale; at least the courts — applying to such proceedings the well-known and invariably recognized principles of the common law, which control the execution of all special authorities— have so held; and the ignorance or negligence of the officers intrusted with the execution of the power, has thus far defeated the manifest design of the law. The remedy is obvious. Let the revenue laws be plain and simple; dispense with all useless and unmeaning forms and technicalities which encumber the present system. Give to the officers who execute the power, information to enable them to perform their duties; and when the law is once perfected, and the officers have become familiar with the routine of their duties under it, let it stand upon the statute book, and abandon the system of annual changes in the details of the law. When these suggestions are acted upon, or some more feasible plan adopted, then will a tax title cease to be a by-word among land-owners and land-dealers. Then will courts no longer remark, in opening the discussion of a tax cause, "this title is of that kind almost proverbially known as a collector's title, as expressing a case of doubt and difficulty." 1 Then no court will declare a tax title primâ facie void, and become" astute" in searching for defects in them. Then liberal principles will prevail in testing their validity, and the ordinary presumptions made to sustain them. And then, and not till then, will land-owners look to it at their peril that

1 10 Mass. 105.

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*295 their taxes are promptly paid, or (if by oversight they suffer the day of sale to pass by) be vigilant in effecting a redemption. As things now stand, a tax title is no title at all. Out of the numerous sales made under the acts of Congress between the years 1800 and 1818, not a single one has been sustained; and not exceeding ten, under the laws of the several States, out of at least twelve hundred which have found their way to the superior courts of the country. Experience seems to have thrown but little light upon the subject, and the legislature have been unable to keep pace with the ingenuity of the bench and bar in discovering defects in tax sales.

14. Where, after an assessment is made, the county in which the proceeding was had is divided, the collector of the old county has power to sell land lying in the territory embraced in the newly created county. This is in conformity with the

general principles of law in analogous cases.2

The law relative to fraudulent sales and the location of the land sold, will be examined in subsequent chapters.

1 Devor v. McClintock, 9 Watts & Serg. 80; Moss v. Shear, 25 Cal. 38.

2 5 Watts, 87; 16 Ohio, 466; 17 Ohio, 135-143; 16 Mass. 86; 4 Mass. 389; 6 J. J. Marsh. 147; 4 Halst. 357.

CHAPTER XVI.

OF THE CERTIFICATE OF SALE.

WHEN a sale is made, the officer usually executes and delivers to the purchaser a certificate of the sale, which constitutes the evidence of the purchaser's right, and entitles him to a deed for the land sold, unless the sale is redeemed from by the owner within the time limited by law in that behalf. This is the case in Ohio, Illinois, Michigan, and Missouri,1 and perhaps in other States. (a)

In Connecticut, the statute required the collector, upon the sale of the land, " to give to the purchaser a deed of warranty thereof, to be lodged in the office of the town clerk where the land lies, to remain unrecorded twelve months; and if the owner shall within twelve months from the time of the sale, pay or tender to the purchaser, &c., the purchase-money and twelve per cent interest thereon, such deed shall be void, and shall be delivered up to the person paying or tendering the money," &c. 2

In other States, the officer, immediately upon the receipt of

1 Rice v. White, 8 Ohio, 216; People ex rel. Seaman v. Hammond, 1 Dougl. 276; Reeds v. Morton, 9 Mis. 878; Bruce v. Schuyler, 4 Gilm. 221; Silliman v. Frye, 1 Gilm. 664.

(a) The holder of such a certificate has such an interest in the land as to be a proper party in a proceeding to foreclose an equity of redemption. Brobst v. Thompson, 4 Greene (Iowa), 135.

But before delivery of deed title remains in former owner, even after time of redemption has expired, and he may maintain ejectment against holder of tax certificate. Williams v. Heath, 22 Iowa, 519. So in Pennsylvania, until tax title of unseated land has matured by expiration of two years from sale, the owner, on his constructive possession, can bring trespass; and the purchaser at the tax sale commits a trespass in cutting timber on the land. Shalemiller v. McCarty, 55 Penn. 186.

2 Ives v. Lynn, 7 Conn. 505.

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