scribed by the statute thus: "Notice is hereby given that, &c., I shall sell," &c., to be signed "A. B., sheriff of

county," or

"A. B., deputy sheriff of county." And where there is nothing in the statute to indicate that the deputy may sell, the duty may still be performed by him, his act being regarded as the act of his principal. But in a State where taxes are usually collected by an officer styled a collector, if by statute the sheriff in certain counties is authorized to act as collector for these counties, he is invested with two distinct offices, and if the statute which invests him with the office of collector does not authorize him to appoint an under-collector, the deputy sheriff cannot act as under-collector, and a deed for land sold for non-payment of taxes, executed by the deputy sheriff, is void.1

Place of Sale.-When the statute fixes the place of sale, it must be followed strictly. In one of the cases cited, the sale was required to be "before the court house door," but it took place inside of the court house, and the sale was void. The court say it is not necessary to give reasons why the sale should be before the door rather than inside of the court house; there is no reasoning about it; the law is mandatory, ita lex scripta est, and it must be followed. If the statute fixes no place, and a general power of sale is given to the collector, a limitation on his power as to the place of sale will be presumed, and he will be required to sell in the county in which the land is situated, either at the court house or in the vicinity of the land itself.3

Terms of Sale.-Generally the sale is for cash, and where such is the provision of the statute, if the officer gives credit to the purchaser at the sale, such action avoids the sale. But if the sale is made in the usual manner for cash, and there is no agreement between the officer and the purchaser for credit, before the sale, and if after the sale the officer accounts for the amount of the bid, and gives credit to the purchaser for his bid, such a sale is valid." In like manner, where there is no proof of any stipulation between the purchaser and the officer for credit, and nothing to show that the sale was not in reality for cash, if the money is paid after the sale and accepted by the officer, the sale is valid. He is not obliged to receive bank notes, but is entitled to money. But such transactions must be fair and bona fide, and not used to cover up a sale really on credit and so understood.

1 Lathrop v. Brittain, 30 Cal. 680.

2 Kelly v. Craig, 5 Ired. (Law), 129; Ruby v. Huntsman, 32 Mo. 501.

Rice v. Johnson, 20 Ga. 639.

4 Cushing v. Longfellow, 26 Maine, 306.

Anderson v. Rider, 46 Cal. 134; Hunt v. McFadgen, 20 Ark. 277.

In Pennsylvania the whole tract is sold for cash enough to pay taxes, interest and costs, and for the residue a bond is given payable at a future period, called a surplus bond, to which the owner is entitled. If however the officer sells for cash for the whole price, it does not make the sale void, but is regarded as an irregularity which is cured by the five years act of limitation of 1804 in that State.1

Part of Taxes legal and Part illegal.-Where a part of the land offered for sale is liable to sale for the tax, and part is not, or where the land is sold for different taxes, part of which are legal and part illegal, what is the effect of the sale? As to the illegal part, the act of the officer is a trespass, and the trespass cannot be apportioned. That part of the act of the officer which is innocent cannot be separated from the illegal part. The power of sale in such cases rests alone upon the statute; if that is not followed, the acts purporting to be done under its authority are void. The quaint language of an old writer is very appropriate to such cases: "The statute law is like a tyrant, when he comes he makes all void, but the common law is like a nursing mother, making void only where the fault is, and preserving the rest." A tract of land was partly improved and a part of it was unimproved, the statute as to improved lands required an additional notice, but the whole tract was sold without the additional notice, and the sale was void. The illegality of the sale as to the improved lands attached to the whole sale. Where lands were sold for taxes of the years 1813, 1814, 1815, 1816 and 1817, all of which were legal taxes except for the year 1813, the sale was void because of this illegality. Where the taxes were for the State and town, and the town taxes were illegal, the illegality attached to all the acts of the tax officers under such an assessment. If any part of the tax, however small, is illegal, the sale is void, for the maxim de minimis non curat lex does not apply to sales of land for taxes. While the doctrine announced is fully sustained by the cases, that the act of the tax officers cannot be partly innocent and partly a trespass, yet when a party comes into a court of equity for relief against the sale of land for taxes, and the illegal part can be separated from the legal, the court will require as a

1 Rogers v. Johnson, 67 Penn. St. 43.

McPike v. Pen, 51 Mo. 63; Kirkwood v. Magill, 6 Kansas, 540.

Dwarris on Statutes, 739; Hobart, 14.

'Moulton v. Blaisdell, 24 Maine, 283.

Stetson ". Kempton, 13 Mass. 283; s. P. Elwell. Shaw, 1 Greenleaf, 335; Torrey v. Milbury, 21 Pick. 70; Drew v. Davis, 10 Vt. 506; Lacey v. Davis, 4 Mich. 140; Hall 2. Kelling, 16 Mich. 135; Kemper v. McClelland, 19 Ohio, 324; Hardenburgh v. Kidd, 10 Cal. 402.

condition of the relief against the illegal tax, that the legal tax shall be paid. The case last cited was one in which it was claimed that national banks were taxed at a higher rate than State banks, or rather that the stockholders were so taxed, contrary to the act of Congress on the subject. The court refused to give the relief except upon the payment of a tax equivalent to that paid by the stockholders of State banks, on the principle that he who asks equity must do equity. In Iowa there is a statute that "when a part of the tax for which the land is sold is illegal, it shall not affect the sale, or right or title conveyed by the treasurer's deed, provided the property was subject to taxation for any of the purposes for which any portion of the taxes for which land was sold were levied; that they had not been paid, or the property redeemed." The courts of that State have construed this statute to apply to a tax sale made for an aggregate tax, a part of which was legal and part illegal, sustaining the sale.2

Description of Land sold.—As we have seen, the description of the land in the notice must follow that in the roll, so when the land is sold it must be sold as described in the roll and notice. If distinct parcels or lots are assessed in the aggregate as one tract, and for an aggregate sum, they cannot be sold separately. In one of the cases cited the judgment for taxes was against eight lots for an aggregate sum, the sale was of two lots; in another the assessment was of nine lots en masse, the sale was of each lot for its proportion of the tax due on it, and in each the sale was void. If, however, distinct lots are assessed as one lot, and sold as one lot, the sale is valid, the error in such case being a mere irregularity in the assessment, to be corrected by appeal to the proper tribunal, and does not affect the sale in a collateral proceeding.*

A peculiar case arose in New York in reference to an Indian reservation of 50,000 acres, lying in several towns. Taxes were assessed under a special act of the legislature for the construction of roads through the reservation, and taxes were also assessed for town and county charges. The land was divided into 493 tracts or lots, and a map was made of the reservation. Some of the taxes assessed were on the whole reservation, which was valued at $5,000, some on separate tracts to the extent they were situated in the respective

1 Myrick v. Lacrosse, 17 Wisc. 442; Bond v. Kenosha, Id. 288; Palmer v. Napoleon, 16 Mich. 176; Conway v. Waverly, 15 Mich. 257; Frazer et al. v. Seibeon et al. 16 Ohio, 614.

2 Rhodes v. Sexton, 33 Iowa, 540.

3 Pitkin v. Yaw, 13 IL 253; Willey v. Scovill, 9 Ohio, 43; Morton v. Harris, 9 Watts, 319; Keene v. Barnes, 29 Mo. 377; Wallingford v. Fiske, 24 Maine, 386.

4 Moulton v. Doran, 10 Minn. 67.

tax.

towns, some on the lots as such. The whole was reported to the comptroller as delinquent for the non-payment of the taxes assessed. The comptroller apportioned the whole amount of the taxes among all the lots pro rata, and sold each lot for its pro rata share of the gross The sale was sustained, the court being of opinion that it was in accordance with the spirit of the tax laws of that State. The statute alluded to was one which allowed any person claiming a divided or undivided interest in a tract of land assessed in gross to pay the tax, interest and charges thereon in proportion to the number of acres claimed by him, and making the remaining tax, interest and charges a lien only on the residue of the land, requiring the party claiming the benefit of the act, when his interest was a divided one, to file with the comptroller, if required by him, a map of the subdivision.1

The reverse of the course pursued in the case alluded to also avoids the sale. If the land is assessed to several persons, and under such assessment the whole tract is sold, the sale is void. In the case cited the sale was of a whole township. And where several lots are separately assessed to the same person, they must be so sold. Each lot must be sold for the tax due on it, and one cannot be sold for the taxes of the whole, nor can the whole of the land be sold together for the tax due on all of it.3

The doctrine here stated is sometimes modified by that part of the statute which provides for the sale of the land for taxes limiting the quantity to be sold, as in the act of Congress of 1812, which provided that "unimproved lots in the city of Washington, on which two years' taxes remain due and unpaid, or so much thereof as may be necessary to pay such taxes, may be sold," &c. In construing this act, where several lots were assessed separately to the same person, it was held that there was a lien on each lot for the tax due thereon, which, if the land were sold, would attach in the hands of the vendee, yet that when a sale for taxes was made, if one of the lots assessed to a person brought an amount sufficient to pay the whole tax, no more could be sold, and no excuse could exist for making further sales, and it was thought that if the circumstances would admit of it, only a part of a lot should be sold, if that were sufficient to pay the taxes

'Fellows v. Denniston, 23 N. Y. 420, 438.

2 Wallingford v. Fiske, 24 Maine, 386.

3 Shimmin v. Inman, 26 Maine, 228; Hayden v. Foster, 13 Pick. 492; Donahue v. Richardson, 21 Mo. 420; Andrews v. Senter, 32 Maine, 394.

4 Corp. of Washington ". Pratt, 8 Wheat, 681. The Constitution of Texas requires that in such sales land shall be sold in tracts of not less than ten nor more than forty

acres.

and charges. In a subsequent act of Congress, in 1826, it was provided in accordance with the opinion of the court in Corporation of Washington v. Pratt, that a part of a lot might be sold for the taxes due on it, and on other lots assessed to the same person, if it were sufficient to pay the taxes and charges due by the owner of the lot or lots.1

Where land is assessed to several persons as tenants in common, it should be so sold, but if one of the tenants in common pays the taxes on his undivided share in the land, the sale should be only of the undivided interests of the others for the balance of the taxes due from them on the residue of the land. But where the whole tract is assessed to one person, though it is owned by several, there cannot be a sale of an undivided interest of one of the parties, nor can it be sold in the name of the party to whom it is assessed, for as to him, the land has never been assessed. In New York, by statute, the tenant in common, or part owner, is allowed to pay on his part.5

Quantity and Location of Land Sold.-In Virginia, it is provided by statute, that the sale shall be of each tract separately, or such quantity as is sufficient to pay the taxes, interest and costs thereon, and of town lots, of each lot separately, or such an undivided interest therein as is sufficient to pay the taxes, interest and charges thereon, and it is made the duty of the purchaser to have the quantity purchased, surveyed and laid off by metes and bounds. This statute would seem to assert a doctrine contrary to that announced in Corporation of Washington v. Pratt, requiring each tract to be sold separately for the tax due thereon. But as to the quantity to be sold, the smallest quantity that will pay the taxes, interest and charges is in accord with the tax laws of New Hampshire, Maine, Massachusetts, Connecticut, Maryland and California. The statutes in these States,

and the decisions based upon them, are founded upon the principle that the officer in executing his process, whether it be an execution under a judgment, or a power vested in him for the sale of delinquent lands, is not to make an excessive levy. He is so to exercise his authority as to obtain in one case the amount of his execution, and

1 Mason v. Fearson, 9 How. 248, 258.

2 Ronkendorf v. Taylor's Lessee, 4 Peters, 349, 362; Wells v. Burbank, 17 N. Y. 393; Payne v. Danley, 18 Ark. 441.

4

3 Roberts v. Chan Tin Pen, 23 Cal. 259.

* Barkins v. Winston, 24 Miss. 431.

Code of Virginia, ed. 1873, ch. 38, §§ 9 and 18.

5 23 N. Y. 438.

Loomis v. Pingree, 43 Maine, 299; Crowell v. Godwin, 3 Allen, 535; Ives v. Lynn, 7 Conn. 505; Ainsworth v. Deane, 1 Foster, 400; French v. Edward, 13 Wall. 506; Ďyer v. Boswell, 39 Md. 465.