tenancy to be paid; and if he neglects it, and thereby subjects the land to be sold to pay such taxes, and purchases it in himself, or suffers a stranger to purchase, and then procures a release to himself, he can acquire no right to the estate against the owner in fee.1

But in Branson v. Yancey et al.,2 which was a bill in chancery by the purchaser at an execution sale, against Yancey's heirs, to set aside a tax deed; executed and delivered to the widow of Yancey, and subject the land to the payment of their debts, it was held by the court, that "a widow, who, after the death of her husband, occupies his residence, his children, some of them of age, living with her, is under no obligation to pay the tax accruing thereon between his death and the assignment of her dower. Therefore, a purchase by her of the premises for such taxes made after the assignment of dower, without actual fraud, will not be set aside in favor of her husband's creditors." Henderson, J., dissented, saying, "It was the duty of the occupant to keep down encumbrances, and any

*

acquisition of title made by her, growing out of her * 402 omission is for the benefit of all concerned."

In Woodburn v. Farmers and Mechanics Bank, where one became the judgment creditor of another, and after the judgment became a lien on the land in question, the premises were sold for taxes, upon an assessment against the judgment debtor, and the creditor purchased in the property at the tax sale; and afterwards caused an execution to be issued upon his judgment, and permitted a stranger to purchase the property at the execution sale, without informing him of his tax title, it was held that the conduct of the judgment creditor was a fraud upon the execution purchaser, and that the latter was entitled to the land.

It seems to be a debatable question whether the officer intrusted with the power of sale may purchase the land. This question fairly arose in Chesnut v. Marsh, was discussed by the counsel, but not decided by the court. There, the clerk of the county commissioners' court, who was required by law to

1 Varney v. Stevens, 22 Me. 331; Prettyman v. Walston, 34 Ill. 175, 191; Higgins v. Crosby, 40 Ill. 261.

2 1 Dev. Eq. 77.

4 12 Ill. 173; 14 Ill. 223.

8 5 Watts & Serg. 447.

assist the sheriff in making the sale, whose duty it was to keep a register of the sale, to execute certificates of purchase, and through whom alone a redemption could be effected, was the purchaser. The question, however, principally argued upon this branch of the case, was, as to the jurisdiction of a court of law to declare the sale void. It was urged that this class of frauds was peculiarly within the province of a court of equity.

The Case of Fox v. Cash,1 arose upon a statute very much like that of Illinois; the sale was made to the clerk and sustained. By the court: "The clerk to the commissioners is not forbidden by law, to be a purchaser of land sold at public sale by the commissioners for arrears of taxes. Nor is it so opposed to the policy of the law as to make it iniquitous and void. The sale is open to all, except the commissioners themselves, who

are the vendors, and cannot, therefore, both buy and sell. * 403 The clerk is merely the scrivener, or ministerial agent of the commissioners. He is, it is true, employed or appointed by the commissioners, subject to their directions and instructions; and without any independent authority or control over such sales, has no power in ordering, arresting, or continuing them, or in directing to whom the lands shall be stricken down. Every thing he does in relation to them, must necessarily be in subservience to the directions of the commissioners." (a)

In Nalle v. Fenwick,2 the question as to the right of the deputy sheriff to purchase at the tax sale, arose, but was not discussed. It seemed to be conceded, however, that in this respect the sale was unobjectionable. In Yancey v. Hopkins,3 where the sheriff who made the sale became the purchaser, the title was held valid in his hands. But in this case, there was a general custom, recognized in a public statute, and proved in the case itself, for sheriffs and their deputies to buy land at tax sales. Roane, J., said: "While there was no express inhibition at that day, in any statute, against the sheriff bidding for his own private emolument, such inhibition is not, on the other hand, to be inferred from the reason of the principle on which, 1 1 Jones (Penn.), 206.

3 1 Munf. 419, 437.

2 4 Rand. 591.

(a) The clerk of an auction sale for taxes may purchase. Wells v. Jackson Mang. Co., 47 N. H. 235; a tax collector cannot purchase, directly or indirectly, at his own official sale. Chandler v. Moulton, 33 Vt. 245.

in other cases, it has been held that certain descriptions of persons were enabled to purchase property offered for sale by themselves. The inhibition, in those cases, seems to arise from the confidence placed in, and the internal knowledge acquired by, trustees, commissioners of bankruptcies, auctioneers, &c., which would enable them, if permitted to purchase, to avail themselves of facts coming to their knowledge, in their several characters, and by withholding them from others, to lessen the prices of the articles exposed to sale, to their own emolument. But in the case in question, no confidence has been reposed in the sheriff, and no facts have come to his knowledge which he might abuse to his own advantage; he has no other information on the subject than is derived from the books of the commissioners, as aforesaid; it would be too much to suppose him *cognizant of the particular circumstances attending all the tracts of land in his county. This case, then, does not seem to fall within the reason of the principle above mentioned; and it is not shown, by any adjudged case, that the inhibition has, in England, been extended to sheriffs or collectors, though, I presume, the case must have occurred in a thousand instances." Again, it was remarked in the same opinion, that a bid by the sheriff" might be absolutely necessary to counteract combinations to defeat the collection of the revenue, whether arising from the sympathy of the by-standers, or other causes." A statute was afterwards passed in Virginia, prohibiting the sheriff and his deputies from acquiring title to land, under tax sales.

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404

In Taylor v. Stringer,1 where the deputy was the purchaser, the title was held void in the hands of a bona fide purchaser, who claimed title under the deputy. [In Pennsylvania it has been held, that a county commissioner may purchase, in his own right, unseated land duly sold for taxes.2 And in Kentucky it was decided, that when a deputy register of the landoffice becomes a purchaser of non-resident lands on a sale made by the register, he is bound to show that his purchase was fair in every respect, and made for a full and adequate consider

1 1 Grat. 158.

2 Cuttle v. Brockway, 8 Casey (Penn.), 45; 12 Harris (Penn.), 145.

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ation.1] It must be confessed, that no difference in principle exists between a purchase by a sheriff, at his own sale, and that of a collector selling land for the non-payment of taxes assessed upon it. The same policy which forbids the former, is equally opposed to the latter.2 When this subject again comes before the court, it ought to be carefully considered, for the decisions cited above may be regarded as innovating upon principles which have heretofore been regarded as landmarks. [And although the sale to the commissioner be for more than the taxes and costs, the title of the owner is never*405 theless divested, but if the court ratifies the purchase, the owner gains additional time to redeem. But if the court does not purchase, the right of redemption is limited to ten years. The remarks in Cuttle v. Brockway, 12 Harris (Penn.), 145, do not overthrow, nor were they intended to interfere in any respect with the case of Peters v. Hearley, 10 Watts, 208, upon this point. In a recent case in Vermont it was expressly held that a tax collector selling land to pay taxes, cannot, either by himself or his agent, purchase such estate, and his title is void against the former owner, who may maintain ejectment for the land, although he does not redeem within the time allowed by law.]

1 Morton v. Waring, 18 B. Mon. 72.

3 Russell v. Reed, 3 Casey (Penn.), 166.

2 Lazarus v. Bryson, 3 Bin. 58.

4 Chandler v. Moulton, 33 Vt. 245, citing 14 Pick. 356; 3 N. H. 144; 5 Conn.

475.

CHAPTER XXV.

OF THE EFFECT OF THE SALE AND DEED, WHERE THE LAND SOLD WAS EXEMPT FROM, OR NOT SUBJECT TO, TAXATION.

THE fact that the land is subject to taxation, is the basis of the power to sell it, in case the owner proves delinquent. If the sovereign power of taxation has never attached to the land, or having once legally attached, the land is exempted from the operation of the taxing power, then it cannot be sold. A sale under such circumstances is void to all intents and purposes.1 In all cases, if the person taxed, or the subject-matter of taxation be not within the jurisdiction of the officer who makes the assessment, all subsequent proceedings by mere ministerial officers, acting under a warrant or other authority to enforce the collection of the tax, are deemed utterly void, the assessment being coram non judice.2 The owner is not bound to enjoin the sale of his land under such circumstances, or resort to his remedy against the officers, but may contest the validity of the sale whenever the purchaser or his grantee attempts to recover the possession, or establish his title to the land. Where the constitution itself exempts the land from taxation, it is clear that the legislature have no power to levy and collect taxes upon it. And it would seem to be equally clear, that *where the people, in the exercise of their sovereign * 407 power, in the formation of a constitution with the view

1 Dresback v. McArthur, 6 and 7 Ohio, 307; Buckley v. Osburn, 8 Ohio, 180; Dyer v. Branch Bank of Mobile, 14 Ala. 622; Coney v. Owen, 6 Watts, 435; Sandford v. DeCamp, 8 Watts, 542; Bott v. Perley, 11 Mass. 169.

2 Nichols v. Walker, Croke, Car. 394; Perkins v. Proctor, 2 Wils. 382; Thurston v. Martin, 3 Sumn. 497; Rowe v. Blakeslee, 11 Conn. 479.

3 Dyer v. Branch Bank of Mobile, 14 Ala. 622.

4 Brewster v. Hough, 10 N. H. 138; Hardy v. Waltham, 7 Pick. 108.