each of which is intimately connected with the other, and the whole combined constitute an entire proceeding. The assessment is the foundation, and every subsequent act, particularly those in which the State and the purchaser have an interest, must of necessity relate to the principal act. (a)

There are but two cases which discuss this question. In Ferguson v. Miles, which was an action of ejectment, the plaintiff claimed title under a sheriff's sale made August 8, 1843, based upon a judgment and execution in favor of David B. Hill and against George Morton, and in order to prove title in the latter, the plaintiff offered in evidence a judgment against the land for the taxes of 1840, rendered April 15, 1841, a precept issued thereon, dated April 24, 1841, the register of sales showing a sale to Morton on April 29, 1841, and a deed from the collector to Morton, dated May 11, 1843. The defence proved that the tax deed was executed at the instance of Hill, the judgment creditor, and delivered to him, that the certificate of purchase was not surrendered at the time of the execution of the deed, nor was the deed made with the knowledge or assent of Morton, and that on June 20, 1844, a second deed was made and delivered to the agent of Morton, conveying the estate to Morton, in pursuance of the tax sale. Upon this state of facts the circuit court excluded the tax deed of May 11, 1843. The plaintiff then offered to read the tax deed of June 20, 1844, as evidence of title in Morton, the judgment debtor, but it was rejected. Thereupon the plaintiff prosecuted a writ of error. The supreme court held the first deed inadmissible, because it was never delivered to and *387 accepted by the grantee; but that the second deed was competent evidence of title in Morton, at the date of the sheriff's sale, because two years had elapsed within which the former owner was entitled to redeem, and that the deed of June 20, 1844, related back to the period of time when that right of redemption expired. The judgment was accordingly reversed,

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(a) By a somewhat analogous fiction it seems that money paid before it was lawful to pay it, and remaining in treasurer's hands, might be considered as having been paid afterwards when the right to pay it had accrued. Wyman v. Smith, 45 Me. 522.

1 3 Gilm. 358.

and the cause remanded for further proceedings. This case, it will be perceived, decides simply, that the interest of a purchaser at a tax sale, after the period allowed for a redemption. has expired, and before the execution and delivery of the tax deed, may be sold under an execution, and that a deed afterwards made, will relate back to the time when the judgment debtor became entitled to a conveyance, and that the title thus acquired, will enure to the benefit of the purchaser, at the sheriff's sale.

In Donahoe v. Veal, the action was trespass q. c. f. to recover treble damages under the statute of Missouri, for cutting timber upon land claimed by the plaintiff. To support his title to the land, the plaintiff proved a sale of the land for taxes, in June, 1848, to Thomas Donahoe, a deed from Thomas Donahoe to him for the premises purchased at the tax sale, bearing date April 18, 1849, a tax deed to Thomas Donahoe, dated February 10, 1851, and proved the trespass to have been committed by the defendant after the tax sale, and execution of the deed. from the purchaser, at that sale, to the plaintiff, but before the execution of the tax deed. The material provisions of the statute which governed the rights of the plaintiff, were, that upon the sale, the officer should execute and deliver to the purchaser a certificate of the sale, that the owner might redeem within two years from the date of the sale, and that if he failed to do so, the officer who made the sale should convey to the purchaser. The statute of 1845 made the deed primâ facie evidence of title, upon proof by the party claiming under it, that the requisitions of the law had been complied with; while the act of 1847 made the deed evidence per se, and cast the onus probandi upon the former owner in order to defeat

it. The court held, that the plaintiff was not entitled * 388 to recover, and Judge Gamble, in commenting upon the two statutes declaring the legal effect of the deed, and upon the rights of a purchaser at a tax sale made under them, remarked: "The two acts, while they differ, in putting the onus upon different parties, do not, in the necessity of a compliance with all the requirements of law which are to be observed be

1 19 Mis. 331.

fore the execution of the deed. The principle still remains untouched, that a person claiming to hold land under a sale for taxes, can only maintain his title when the law has been strictly pursued. It is to be observed, that in neither of these acts is there any intimation that the deed is to afford any evidence of title in the purchaser, prior to its date. In the absence of any such provision, the deed, can have no such effect, unless the previous proceedings contemplated the passing of the title to the purchaser before the time appointed for making the deed. If the law did not propose to give the purchaser the title to the land, until two years should elapse from the time of the purchase, then it did mean that the title should remain in the owner for that period, and the right of the purchaser was, to receive his redemption money, with a high penal interest during the delay of redemption. It appears very clearly to be the design of these two acts, that the title to the property sold for taxes shall remain undisturbed until the deed is actually executed by the register, and that until that act is performed, the title is in the former owner. Such being the design of the acts, the doctrine of relation cannot be applied to such deed, to give it an effect and operation contrary to the meaning of the law, by allowing the person claiming under it, to maintain, not only actions of trespass for injuries done after the sale, and before the conveyance by the register, but actions for the rents, issues, and profits accruing during that period. The whole scheme of these acts very plainly shows, that such a construction, or application of the fiction of relation to such a case, would be contrary to the intention of the legislature."

The Illinois and Missouri cases are in direct conflict with each other. The former admits a relation to the time *389 when the right of redemption expires, the latter de

nies the operation of the fiction altogether. The reasoning in Donahoe v. Veal is not satisfactory. The fact that the statute makes the deed, and not the certificate of sale, primâ facie evidence of title, cannot affect the question. When the right of redemption expires, the title of the owner is completely divested, and the purchaser becomes seised of an indefeasible

estate of inheritance. True, his title is an equitable one, but he has a right, at any moment, to demand a deed, by which he will become clothed with the legal title. Prior to the delivery of the tax deed, the estate must reside in some one it cannot be regarded as in abeyance and some one must have The former owner canbecause his title is gone.

a right of action for any injury to it. not sustain an action in such case Unless the purchaser may sue, the trespasser must go unpunished. It is therefore equitable that by means of the doctrine of relation, the purchaser should be permitted to maintain an action of trespass for an injury to the inheritance intermediate the time when the right of the owner to redeem expires, and the execution and delivery of the tax deed. It has been decided, that a party to an ejectment suit cannot read, as evidence of title, a tax deed executed and delivered after the demise in the declaration.1

18. The question sometimes arises, whether a power to sell land for the non-payment of taxes, confers, by implication, the power to execute a deed to the purchaser. Ordinarily, a power of sale carries along with it the authority to execute and deliver to the purchaser the usual instrument of conveyance. It is a general rule, that every grant of power necessarily carries with it all the usual, ordinary, and necessary means for the exercise of that power. And in the case of a power of sale, it would seem reasonable that this principle should apply. The sale is the substantial, and the conveyance the formal, part of the transaction. In cases of private agency, it is difficult to perceive why the agent cannot convey, as well as sell, under

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a power to do the latter. If the owner of the estate 390 can trust his agent to fix the terms of sale, the law may surely sanction his act in conveying the land, where but little discretion is necessary, compared with that to be exercised in the sale upon which it is based. This doctrine has been applied to tax sales in Maine and Illinois,2 but it is most emphatically repudiated in Indiana and Michigan.3

1 Pitkin v. Yaw, 13 Ill. 251.

2 Farrar v. Eastman, 5 Greenl. 345; Bruce v. Schuyler, 4 Gilm. 273, 274.

3 Doe v. Chunn, 1 Blackf. 336, 338; Sibley v. Smith, 2 Mich. (Gibbs) 490.

In Doe v. Chunn, which presented the question whether a municipal corporation, having simply a power to sell land for taxes, could, after a sale, make a deed to the purchaser, the power was denied, because, 1. The power was in derogation of the common law; 2. A corporation can exercise no implied powers; and 3. The power to sell did not imply the power to convey, because the general law, authorizing proceedings against delinquents, treated the sale and conveyance as separate and independent acts. The question was put to the court, how is the purchaser to obtain his right? to which it was replied, "The method is not pointed out by legislative authority; it is a case not provided for in the statute, and a court of law cannot supply the defect." And in Sibley v. Smith, the power of the auditor of the State to convey lands sold by him for taxes, was denied upon similar grounds. These decisions appear extremely unjust, and contrary to law and reason. Can it be supposed, for an instant, that the legislature ever intended to authorize the sale of a tract of land, receive the purchasemoney, and then refuse to clothe the purchaser with the title to it? The idea seems absurd. The purchaser can buy the land, but acquire no title to it- he may pay his money to the State, and yet receive no value for it. A court of equity cannot aid him, because that court has no more power to supply a casus omissus in a statute than a court of law possesses. If courts were as astute in supplying such a defect, as they are,

occasionally, in getting rid of the positive requirements * 391 of a * statute, it is presumed they would be able to sustain a conveyance made under such circumstances, by unanswerable arguments.1

1 The statute of Arkansas prescribed the form of the tax deed, which contained many recitals, and among others the day of sale and the person by whom it was made, and declared the deed conclusive evidence of title in the purchaser; and it was held in Hogins v. Brashears, 8 Eng. 242, that where the deed, in its recitals, showed that the sale was made on the wrong day, and by an ex-collector, after the expiration of his term of office, it was void upon its face, and conveyed no title to the purchaser. But a deed is not void simply because it does not show affirmatively that every thing has been done that the law directs in the assessment, levy, and collection of the tax. Pleasants v. Scott, 21 Ark. 370; Budd v. Bettison, 21 Ark. 582. A tax deed cannot, in absence of special statutory provisions, convey any other estate than a fee-simple. Smith v. Messer, 17 N. H. 420.