Until the redemption takes place, he is the owner of the estate undoubtedly. But has he all of the rights incident to an ownership in fee? Has he a right to take possession, and make improvements upon the land? If timber land, may he clear, fence, and cultivate it? These and similar questions are somewhat embarrassing. One thing, however, is certain; his possession would not be adverse to the true owner until the time of redemption expired; and consequently the statute of limitations would not run in his favor. He is in without the consent of the true owner, and against his will; but he holds the possession in subordination to the title of the original proprietor, in case a redemption is seasonably made. If the owner does not redeem, the possession may be regarded as adverse, and having relation back to the date of his entry, even as against the former owner. But suppose a redemption takes place within the time limited, is the possessor under the tax title entitled to compensation in equity for his improvements, or is he to be regarded as having made them at his peril? Is the former owner entitled to an account of the rents and profits of the estate while in the occupancy of the tax purchaser? Has he any remedy for waste, spoil, or destruction? When the redemption takes place, can it have any retrospect, so as to make the tax purchaser a trespasser under any circumstances, or does it operate like the performance of any other condition subsequent *302 annexed to an estate? These questions must necessarily arise in the investigation of the rights acquired under the taxing power of every State; and without attempting the solution of them, or anticipating the decision of the courts when they do arise, it may be remarked that the analogy is complete between an estate at common law, with a condition subsequent attached to it, and the title of a tax purchaser after the delivery of the deed to him, and prior to the time when the right of redemption by those laboring under disabilities, has expired; and it would seem that the same principles are applicable to each. CHAPTER XVII. OF CONDITIONS SUBSEQUENT TO THE SALE. We are not now treating of conditions subsequent, annexed to estates at common law, on the breach or non-performance of which an estate which has already vested may be defeated; but of those acts which the law requires to be performed after the sale has been made, in order to vest the estate in the purchaser. In the language of Judge Cowen, these conditions, "if looked to in their chronological order, are indeed conditions subsequent; but for the purpose of giving effect to the deed, they are conditions precedent, to all intents and purposes, and without showing affirmatively the literal performance of them, the deed is mere waste paper." The statutes of several of the States require either that the ministerial officers of the law, or the purchaser shall, within a limited time after the sale has taken place, perform certain duties or acts intended for the protection of the former owner, the non-performance of which invalidates the sale.2 The duties of this character most commonly enjoined upon the officers, are the return of the proceedings anterior to, and at the time of the sale, and the deposit or record of the same; and those imposed upon the purchaser are the filing of a surplus bond, the record of his certificate of purchase, and the giving of a notice to redeem, actual or constructive, to the former owner. Of each of these in their order. 1 Bush v. Davison, 16 Wend. 554. [2 In Michigan, it has been held that the sale was not void merely because the town treasurer failed to make a statement under oath of all money collected by him, and file the same with the county treasurer. Tweed v. Metcalf, 4 Mich. * Where the law requires the officer who made the sale, * 304 to return a history of his proceedings, it must be done at the time and in the manner prescribed, or the sale is invalid.1 The return must show the description of the land, the name of the purchaser, the time of the sale, and all other particulars connected with it which the law requires. The object of this legislation is to perpetuate the facts attending the transaction, to enable the owner to learn from the record the fact that his land has been sold, and to guide the officer intrusted with the power, in the execution and delivery of a conveyance to the purchaser. It is neither safe nor expedient to leave the title to real estate to depend, in any case, "upon the uncertain and fading memory of mortal man ;" and it is not the policy of the law to do so. By the return, the owner is always enabled, by going to the proper officer, to ascertain with certainty the fact of sale, and protect his interest in the premises by a redemption, or at his peril contest the validity of the proceedings. And the officer intrusted with the power of making the conveyance, is enabled to ascertain the description of the land, the amount of the bid, the quantity sold, the name of the purchaser, and every other fact which the law requires to be stated in the deed. The return of sale, in this class of cases, is not analogous to the return upon an execution, and stands upon an entirely different footing. There the authority of the officer is derived from the judgment and execution, and no neglect in advertising, no irregularity in the sale, or subsequent proceedings, can defeat the title of the purchaser. The officer may justify, and the purchaser acquire, a title under an execution, although it is never returned. If the power once existed, it is immaterial what becomes of the evidence of it. Such are the principles which govern the sales of sheriffs under executions.2 It is very different as regards the returns of collectors, under the revenue laws. There are no parties to the proceeding but the State, officer, and purchaser. The owner is neither a party nor privy. * The proceeding is against his will, in hostility to his * 305 rights, and for the purpose of subverting his title. The 1 See Lane v. James, 25 Vt. 481; Green v. Craft, 28 Miss. 70. 2 4 Wheat. 500; 2 Bin. 401; 1 Cow. 18; 10 East, 73; 8 Johns. 52. officer is not his agent, and has no power to bind him, except so far as he pursues the imperative provisions of the law. The officer acts at his peril in selling and making his return, and the owner in determining whether he will redeem, or contest the title of the purchaser, as shown by the return. The return is essential to enable the owner to determine upon his course of action, and as it is beneficial to him that a return should be made, that return becomes an important prerequisite, and unless it is made within the time, and in the mode prescribed by law, no title can pass to the purchaser at the sale. Besides, the proceeding is stricti juris, and, upon general principles, the law gives an action against the officer for making a false return, and unless that return is made, the owner is remediless in the premises. Again, there are no other means provided for giving to the owner official information of the fact of sale, and the particulars connected with it, except in those States where a register of the sale is made and kept by the officer in whom the power of sale is vested, or by his legal assistant. Thus, the Illinois statute of February 27, 1833, requires the sale to be made at the time and place designated, by the clerk of the county commissioners' court, assisted by the sheriff, as auctioneer, and directs the clerk to "keep a register of such sales, in a book to be provided by him for that purpose, in which he shall enter each tract of land exposed to sale by the sheriff, as particularly as described in the advertisement, &c., stating the precise quantity of each tract sold, to whom sold, and the amount of the proceeds of such sale, leaving at the end of each line three columns in blank, of sufficient space to insert the names of persons who may redeem such land, the date of redemption, and the amount of the redemption money,"1 and transmit to the auditor of State a transcript of the same.2 And * under the act of February 26, 1839, where the sale is *306 made by the sheriff, aided by the clerk, similar duties are imposed upon the latter relative to the keeping of a registry and the making of a return of the sale. It is evident 1 Laws 1833, p. 530, sec. 6. 2 Laws 1823, sec. 7. that the registry and return are of importance to the former owner and purchaser, and also to the officer who executes the deed, and through whom a redemption is effected. By reference to the register the owner can be informed as to the time when the sale was made, the amount for which the land sold, who made the sale, and when and where it was made, the quantity of his land sold, and every other fact necessary to enable him to redeem or contest the regularity of the proceedings. On inspection the purchaser can see whether the sale has been redeemed from, when and by whom it was effected, and the amount of the redemption money paid to the officer; thus ascertaining the legality of the transaction, and the extent of the officer's liability to him. The registry, or return, is also the guide of the officer, when he executes his deed, or the owner applies to redeem, and when the purchaser calls upon him for the payment of the redemption money. And under these statutes, the transcript of the sale, directed to be returned to the auditor, was evidently intended for the benefit of nonresident owners, by giving to them additional means of informing themselves of the fact of sale, and the particulars of it. In every view of the subject, it is manifest that the return, or a registry of the sale, is beneficial to all parties in interest, and therefore becomes a substantial prerequisite to the validity of the purchaser's title. The statute of Maine required the collector to make return of "his particular doings in the sale," to the town treasurer, within thirty days after the sale. Under this statute it has been held, that unless the return is made within the time limited, the title of the purchaser cannot be sustained. In this case the return did not designate the land sold, and the court held, that even if made in the time prescribed, it was void, 307 for want of a specification of the land; "the owner could not ascertain from it whether any, or what land of his had been sold." Under the statute of New Hampshire, it was [1 Andrews v. Senter, 32 Me. 394; Pinkham v. Morang, 40 Me. 588; Lane v. James, 25 Vt. 482. And in Maine, if the whole tract is sold, the return should state that it was necessary to sell the whole, or the sale is not valid. Lovejoy v. Lunt, 48 Me. 377. And see Loomis v. Paissee, 43 Me. 311.] |