pay them out of the purchase money, when he sold to pay the debt. The court held that the cases in which a trustee is entitled to reimbursement for taxes paid on property to which he has the legal title, are those cases where he has the full control and management of the property, not where he has the mere legal title. Where he is a trustee in a deed to secure the payment of a debt, he must follow his authority; he cannot undertake to pay taxes thereon, even if they are a lien, nor to pay off prior incumbrances of any kind, unless authorized to do so by the deed.1

In Pennsylvania the statute makes taxes a lien on real estate. A tract of land was mortgaged, and then the equity of redemption of the mortgagor was sold. After this sale of the equity, the taxes in question were assessed, and the land was then sold. It was claimed that the lien for taxes was superior to the lien of the mortgagee, but this view was not sustained. It was said that the statute merely gives a lien, which, like other liens, is to be enforced according to its priority regulated by its date. The legislature might have given it a preference over all other liens, but they have not done so. The person liable for the taxes was neither the mortgagor nor mortgagee, but the owner at the time of assessment.?

An interesting question arose in that State as to the subrogation of tax liens. Taxes were assessed on certain real estate, and by statute were made a lien on it. There was personal property on the premises sufficient to satisfy the taxes. The collector paid over the amount of this tax to the State, and the owner confessed judgment to the collector, for a certain amount, as collateral security for the payment of the taxes which had been paid for him. Shortly afterward the owner died, the land was sold in the Orphans' Court, and the collector claimed to be substituted to the tax lien, but his claim was rejected, the court holding that the payment by the collector discharged the lien at law, and while in equity it would be kept alive if justice required. it, yet the cases in which this principle was applied were cases where the party stood in the light of a surety, and was compelled to pay, as in the case of a tenant whose goods have been distrained for payment of the tax due by the landlord on the premises occupied. In the case of the collector, it was his duty to collect the tax; he had the means of so doing, and the payment by him was purely voluntary. In equity he is regarded as a stranger, not as a surety, or one in priority entitled to be substituted to the rights of the State, whom he was compelled to pay.s

1 Schmidt v. Smith, 57 Mo. 135; Scott v. Shy, 53 Mo. 478.

2 Gormley's Appeal, 27 Penn. St. 49, 51. 3 Wallace's Estate, 59 Penn. St. 401.

In Georgia a statute very similar to the one noticed in Mississippi, has received a different construction. It provides that "Taxes imposed by this act shall be preferred to all securities and incumbrances whatsoever." The assessment of lands commenced on the first day of January; after that the tract of land in question was sold under execution against the owner. The taxes not being paid, the land was sold for non-payment of the tax assessed. The purchaser brought

ejectment and recovered. It was said the act creates a lien which overrides all others, and attaches in the hands of all purchasers. The lien commences on the day the land is taxable by law, and the court seemed to agree with Judge Christiancy, that the lien would exist without any statute.1

Where taxes are assessed on the first day of May, and are a lien from that day, if the land is leased and the lessee covenants to pay all taxes during the term, to be paid on the first day of November in each year during the term, and the building on the land is destroyed by fire on the ninth of November, and soon after the lease is terminated, if the lessor pays the tax which was assessed on the first of May, he is entitled to recover it of the lessee. And so when the lessee makes a covenant to pay all taxes during the term, and the tax is assessed on the first of May, and soon after the building is destroyed by fire and the lease terminated, the lessee is liable for the tax for that year, although the lessor has sold the estate to a purchaser who has agreed to pay half the tax for that year; this payment is a part of the purchase price. The purchaser of land on which the tax is a lien, takes it subject to the lien, and when the vendor exhibits a receipt showing that the tax is paid, if only a check has been given to the collector for the tax, which is not paid, the land is still liable; the check is not payment.

1 Gledney v. Deavors, 8 Ga. 479.

3 Paul v. Chickering, 117 Mass. 265.

2 Desmond v. Babbitt, 117 Mass. 233.

4 Kahl v. Love, 37 N. J. Law, 5.

CHAPTER XV.

MODE OF COLLECTING TAX, BY SALE OF LAND, OR OTHERWISE.

§ 110. Forfeiture.—When the collector fails to make the tax on real estate from the goods and chattels of the person charged with the tax thereon, it is usual to provide for the sale of the real estate for the payment of the tax. But sometimes a harsher mode is adopted, and the land is declared to be forfeited to the State. It was at one time a question whether there could be a forfeiture without office found or some act equivalent thereto. The common-law principle, that the king cannot take except by record, was applied to the State, and hence the necessity of an inquisition to establish the forfeiture.1 The doctrine is now well settled that there may be a forfeiture without such office found, or any equivalent act. If the legislative intent be clear, the forfeiture may be made complete by mere legislative act.2

In Virginia, by a series of acts from 1831 to 1838, it was made the duty of owners of lands west of the Alleghanies, to have them entered on the books of the commissioner of the revenue (the assessor) in the counties in which they were situated, and to pay all taxes and arrears of taxes where they had been omitted from the books of the commissioner in previous years. In case of a failure to comply with these provisions, all right and title of the parties was forfeited to the commonwealth. Lee, J., in speaking of these acts, says: 66 To consummate and perfect a forfeiture in such case, no judgment, or decree, or other matter of record, nor any inquest of office, is necessary, but the statutes themselves, of their own force and by their own energy, work out their own purpose, and operate effectually to divest the title out of the defaulting owner, and perfectly to revest it in the commonwealth, without the machinery of any proceeding of record, or anything in the nature of an inquest of office." The mode in which the forfeiture was made effectual was, that the Circuit Court of each

'Blackwell on Tax Titles, 462, 463; Kinney v. Beverly, 2 Hen. & Munf. 531.

Martin v. Snowden, 18 Gratt. 127; Wild's Lessee v. Serpel, 10 Gratt. 405, 408, 409; Smith et al. v. Chapman, 10 Gratt. 465, 468, 469; U. S. v. Reptingy, 5 Wall. 211, 267, 268. Baker v. Kelly, 11 Minn. 480, seems to be contra.

'Wild's Lessee v. Serpel, 10 Gratt. 408, 409.

county appointed an officer, styled the commissioner of forfeited and delinquent lands, whose duty it was to ascertain and report to the court, the quantity, situation, and probable value of each tract forfeited, and any other information he might obtain in respect to such lands. Upon his report coming in, the court ordered sales to be made of the forfeited lands,' and in such sales, it was not a sale of the interest of the party who had been charged with taxes only, but it was the sale of an absolute title which had been revested in the commonwealth

by the forfeiture. In Louisiana the forfeiture is accomplished by sending the delinquent list to the auditor, then it is filed in the receiver's office of the parish, and recorded in the mortgage record book. After this the collector advertises and sells. The recording is considered a seizure of the land.2

In some of the States, as Ohio, North Carolina and Illinois, the forfeiture is consummated in a different mode. Where land is sold for the non-payment of taxes, if no one bids a sufficient amount for the whole tract to pay the taxes, it is struck off to the State; and when these lands thus owned by the State have accumulated, they are sold by some officer of the State. But unless the language of the act is clear in creating a forfeiture in such cases, the mere fact that the State was the purchaser would not vest it with any title except such as the party to whom the land was assessed owned.

3

Where lands are forfeited, they may be redeemed, and although the forfeiture was in the lifetime of the ancestor, the heirs may redeem. Although time may be given in which the owner may redeem, this does not operate as a release of the forfeiture, unless the owner avails himself of the privilege, and actually redeems.5 And where the act allows the owner not only to redeem after the forfeiture, but to redeem from the purchaser in one year from the sale under the forfeiture, the receipt of taxes for several years from the owner, between the day of forfeiture and the day of sale by the State, is not a waiver of the forfeiture, further than indicated by the statute, the intention of which was a complete redemption by payment of the whole amount due. Suppose the whole amount of the tax were paid by a third person, how would the title of the purchaser be

1 Smith v. Chapman, 10 Gratt. 468, 469; acts of 1836 and 1837, PP. 9-12.

2 Morrison v. Larkin, 26 Ln. Ann. 699.

3 Buckly v. Osborn, 8 Ohio, 180; Hannell v. Smith, 15 Ohio, 134; Register v. Bryan,

2 Hawkes, 17; Statutes of Illinois, 1845, pp. 448-450.

4 Reynolds v. Leiper's Heirs, 6 & 7 Ohio, 250.

3 Usher's Heirs v. Pride, 15 Gratt. 190, 199; Staats v. Board, 10 Gratt. 400.

affected? Ordinarily that is a complete defense to a tax title, and it would no doubt be good where the land is forfeited, if the object were merely the collection of the tax. But where the object of the forfeiture is not merely to collect the tax, but as in the case of the Virginia acts, to quiet titles and to remove the check to population and improvement of the country, which their unsettled condition served to create,1 it may well be doubted if it would have any effect on the title.

§ 111. Delinquent List-Judicial Condemnation.- Ordinarily lands are not forfeited directly to the State for the non-payment of taxes, but upon a failure of the owner to pay the taxes, so much of the land as is necessary is sold by the collector, a certain period is allowed the owner or his heirs to redeem from the purchaser, and after the expiration of that period a deed is made to the purchaser for the land sold. These proceedings are regulated by the statutes of the various States, which, while they differ as to details, are in substance the same. As the title to land is divested, the courts regard tax proceedings with great strictness, and require those claiming title under them to show not a substantial, but almost a literal compliance with all the requirements of the statute. The owners of real estate being primarily liable for the payment of the tax assessed, after the tax list has been placed in the hands of the proper officer for collection, the first step thereafter is an official return by such officer, showing the failure to make the tax out of the goods and chattels of the owner, as directed by his precept. Such a return by the officer is called the delinquent list. It is returnable to some officer or some court of inferior jurisdiction, or some court of general jurisdiction vested with special powers as to tax proceedings. The return of this delinquent list is absolutely essential. Where the statute prescribes the form of the return, it must be followed, and all the requirements as to the time in which it is to be made, and its authentication, must be strictly followed. If the collector or other officer is required to make oath, it must be complied with, and all facts required to be stated in the affidavit must appear. Where the county treasurer was required to post publicly and display copies of the delinquent list and notice of sale, such posting to be shown by his affidavit, a failure to show this by affidavit was such a defect as could not be supplied by

1 Smith et al. v. Chapman, 10 Gratt. 445-467, 469; Thevenim v. Slocum's Lessee, 16 Ohio, 519, 532.

↑ Messenger v. Germain, 1 Gilman, 631; Hannel v. Smith, 15 Ohio, 134; Homer v. Cilley, 14 N. H. 85; Huntington v. Brantley, 33 Miss. 451; Pitts v. Booth, 15 Texas, 453; Hill v. Mason, 38 Maine, 461; Tallman v. White, 2 N. Y. 66.