to pay it over to the purchaser without any of the conditions attempted to be imposed upon it.] The code of Louisiana authorized a redemption, upon condition that the owner would pay to the purchaser the amount of his bid, with all costs and charges, eight per cent interest, and the value of all improvements made upon the land; it was held, that an offer to redeem and a refusal by the purchaser to render an account, were equivalent to a redemption.1 (a)

The receipt or certificate of the proper officer is primâ facie evidence of a redemption.2 (b) Or the records of the office where the redemption is effected, or sworn copies thereof may be resorted to. Loose declarations of parties will not be admitted in questions of this character. A mandamus is an appropriate remedy, where redemption is improperly refused by a public officer. The law of New York and Illinois, relative to redemption notices, has been stated in a preceding chapter, but a case relative to the mode of computing time in this class of cases may be stated in this connection.

The statute of New York made it the duty of the city authorities to give at least six months' notice to redeem from tax sales, before the expiration of two years after such sale by publication in a newspaper, at least once in each week, for four weeks successively. In the People v. The Mayor of New York, the notice to the owner was valid, if lunar months were intended by the statute, otherwise it was void. The court

1 Brooks v. Hardwick, 5 La. An. 675.

(a) A tender, in Massachusetts, after advertisement, but before sale, need not include any fee for a levy upon the land, or travel to make a return to State or County treasurers, or for a commission on the tax. Converse v. Jennings, 13 Gray, 77.

A tender must be unconditional, and for the use of the purchaser, his heirs or assigns, and where made with a collusive understanding that it shall be refused, it is not sufficient. Woodbury v. Shackleford, 19 Wisc. 55.

2 Taylor v. Steele, 1 A. K. Marsh., 316. See Huzzard v. Trego, 35 Penn. St. R. 9; Byington v. Rider, 9 Iowa, 566.

(b) A tax sale of school-lands is not invalidated by the fact that at the time of the sale it had been marked "redeemed" on the books of the office, and a receipt to that effect had been given to the certificate holder, when this was done by mistake, and it had not been in fact redeemed. State v. Commissioners, 13 Wis. 409.

3 Lane v. Sharpe, 3 Scam. 567. 5 10 Wend. 394.

4 Finch v. Brown, 3 Gil. 488.

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held, that solar months were designed. By the court: * 436 "Does the word months, in the statute, mean lunar or

calendar time? The general rule which must be applied to this case is, that unless there is something in the statute indicating that the legislature intended calendar time, this term must be construed to be a lunar month. I am of opinion there is enough in the statute authorizing such a conclusion. It allows the owner two years from the time of the sale within which he may redeem, and requires the corporation to give public notice, at least six months before the expiration of that period, for four weeks. Now, as calendar time is used, by the legislature in fixing the period for redemption, it is a just and reasonable inference that they intended to use it in fixing upon the division or period of time, specifying the notice to be given the owner to redeem. As the one period, in express terms, is calendar time, and the six months immediately succeed it, and were intended to include part of it, it should be construed to mean the same, otherwise we must believe the legislature intended to fix different periods, by different calculations of time, in the same breath, and on the same subject-matter, and without any conceivable purpose." [If the purchaser at the tax sale is indebted to the tax-payer for more than the amount of the tax, this has been thought to operate as an immediate redemption, and the deed to him would become inoperative.1] (a)

1 Gaskins v. Blake, 27 Miss. (5 Cushman), 677.

(a) A redemption after an invalid sale does not strengthen an owner's title. Cuttle v. Brockway, 32 Penn. St. R. 45.

That the legislature cannot forbid the making defence to a void tax title unless redemption money is paid, see Conway v. Cable, 37 Ill. 82.

Where several distinct parcels have been improperly sold in gross, the purchaser cannot object to a redemption by parcels. Penn v. Clemens, 19 Iowa, 372. A law requiring as a condition of redemption payment of thirty per cent interest on taxes paid by purchaser subsequent to sale, is not unconstitutional. Mulligan v. Hintrager, 18 Iowa, 171.

A law requiring an applicant to recover lands sold for taxes to file an affidavit of tender and refusal of the tax and costs, with one hundred per cent interest thereon, and twenty-five per cent upon all subsequent costs and taxes, and the full value of improvements, is not unconstitutional. Craig v. Flanagin, 21 Ark. 319.

CHAPTER XXVIII.

OF THE EFFECT OF THE SALE AND DEED, WHERE THE OFFICER HAS ABUSED OR EXCEEDED HIS AUTHORITY.

Ir is a general principle, that if, in the execution of an authority conferred by law upon a public officer or private individual, an abuse or excess of the authority occurs, the entire proceedings under the authority are rendered void, and the person committing the act complained of as an abuse or excess, becomes a trespasser, ab initio. And it is immaterial whether the authority is derived from the common or statute law; or whether the abuse or excess consists of an act of commission or omission. In each instance the act is illegal, but the remedy varies according to the circumstances of each particular case.1 On the other hand, the abuse or excess of an authority in fact does not render the entire execution void, but only the illegal part of the transaction. But even in this case the courts must be enabled to separate that which was properly done, from that part which there was no authority for doing. The same principle is applied to the execution of all private authorities, and to powers of appointment and revocation growing out of the statute of uses. There an excessive execution of the power does not vitiate and taint the entire act, but only so much as constitutes the excess, provided the excess can be seen and separated.

* 438

*The rule is thus laid down by Sugden: "Where there is a complete execution, and something ex abun

1 The six Carpenters' case, 8 Co. 146; Bagshawe v. Goward, Cro. Jac. 147; Taylor v. Cole, 3 Term, 292; Winterbourne v. Morgan, 11 East, 395; Anscomb v. Shore, 1 Campb. 285; Messing v. Kemble, 2 Campb. 115; 1 Wilson, 154; 2 W. Bl., 1218; Bacon, Abr., Tit. Trespass; 1 Chitty, Pl. 185, 11 Am. Ed.. 1851; 5 B. & C. 485; 2 Johns. 191; 10 Johns. 253, 369.

dante added, which is improper, there the execution shall be good, and only the excess void; but where there is not a complete execution of a power, and the boundaries between the excess and execution are not distinguishable, it will be bad. If a man, having a power to lease for twenty-one years, lease for forty, that will be good in equity pro tanto, because it is a complete execution of the power, and it appears how much he has exceeded it." But it seems to be a debatable question, whether a court of law will support an execution of the power under such circumstances. The authorities are divided upon the point. While such is the general doctrine relative to the excessive execution of private powers, it is believed that no case can be found where the principle has been applied to a naked statute power. In the last-mentioned class of cases, the execution must be held good or bad in toto. There is no middle ground to be taken. The cases already cited abundantly prove, that where the officer abuses his authority by selling more land than is necessary to pay the tax, his act is void. [So where the collector of the tax had been enjoined by a court of chancery, a sale of the land taxed, pending the injunction, is void; and may be set aside in chancery.]

4

But the strongest case in illustration of the doctrine, and which is placed upon invulnerable grounds, is that of Jones v. Gibson.5 The facts were, that a tract of 390 acres was listed for taxation; the land belonged to tenants in common, one of whom before the sale, paid the tax due upon his undivided third. The law provided, that unless a less quantity than

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*

the whole tract was bid for at the sale, the officer should 439 convey to the governor for the use of the State. The

law further provided, that when a less quantity than the whole should be sold, it should be surveyed and set apart to the pur

1 Sugden on Powers, ch. 3, sec. 9.

2 Adams v. Adams, Cowp. 651; Campbell v. Leach, Amb. 740; Roe v. Prideaux, 10 East, 158.

*

3 Ante, pp. 287, * 288; Mason v. Fearson, 9 How. (U. S.) 248; O'Brien v. Coulter, 2 Blackf. 421.

[ Williams v. Cammack, 27 Miss. (5 Cushman) 210. In this case the injunction had been served on the sheriff, but he said he should sell anyhow.] 5 2 Taylor (N. C.), 41; Batty, Ed. 480.

chaser by metes and bounds. Two years' taxes were due upon the land. The entire tract was offered for sale, and 389 acres of it were purchased by the plaintiff for the taxes in arrear. The land was duly surveyed, and a deed executed and delivered to the plaintiff, in pursuance of the sale and survey. The question was thus presented to the court of appeals, after a verdict for the defendant: "If, upon these facts, the plaintiff is entitled to recover the whole of the 389 acres, or any undivided part thereof, then the verdict is to be set aside; otherwise to stand." Seawell, J.: "There is no analogy in principle between this case and those of selling for taxes, without due advertisement; in which cases such sales have been held good. There, the officer did no more than he was authorized to do; here he has. He has in this case sold an entire tract for taxes on the whole, when no tax was due for one-third part. He has not been satisfied with this; but has sold for the raising of two years' taxes upon the whole, when by law, he had no right to sell at all, and which appears on the face of the deed. The purchaser, therefore, cannot show his title, without exhibiting on the face of it, an abuse of the authority under which the sheriff acted. But it is insisted, that so far as the sheriff could have sold, his sale ought to be effectuated; and cases of powers derived from contract have been relied on. Now, it may be a general rule, that in such cases the courts will sustain them, where they have been executed in such way that the act which the agent had authority to do, was properly done, and was capable of being separated from that which there was no authority for doing. But how, in the present case, can such separation be made? The selling of the land was not in a proper manner; for the sum raised was three or four times as much as the officer had authority to demand. No one, therefore, can tell how much would have been required to raise the tax legally

demandable. If this were a case of private agency, we * 440 therefore see no *principle upon which a court could presume to collect an intention to execute a power; for the act done, and the effect which results from an operation of the act, if it is to have any, are as essentially different from a proper exercise of the power, as any two acts could be. In