since, without having yet reached conclusive settlement. One of the most learned and able of the early Virginia judges declared his opinion, under the act of 1790, that the forfeiture could not be perfected so as to divest the title of the former owner without inquest of office. This view was accepted in Kentucky, and has been assented to in an elaborate opinion by the supreme court of Mississippi, though this was weakened by able dissent. Decisions in Minnesota are to the same effect. But there are respectable authorities to the contrary, among which are now to be reckoned those of Virginia.

Some ground we may safely occupy here without liability to controversy. It is conceded on all sides that an intent to transfer title to the government by forfeiture will not be inferred in any case from language capable of any milder construction. The courts of Ohio acted upon this view when they held that a statute which declared that, after due record of the default, the land "shall be considered as forfeited to the state of Ohio, and be subject to be disposed of in such

1 Tucker, J., in Kinney v. Beverly, 2 II. & M., 318. The other judges gave no opinion on this point.

2 Barbour v. Nelson, 1 Litt., 60; Robinson v. Huff, 3 Litt., 38. And see Currie v. Fowler, 5 J. J. Marsh., 145; Harlan's Heirs v. Seaton's Heirs, 18 B. Monr., 312. In Marshall v. McDaniel, 12 Bush, 378, it is said that although the statute may require the listing of property for taxation, and as a penalty for failure to list may impose a forfeiture, the forfeiture must be declared by due process of law. The failure to list cannot ipso facto, without inquiry or trial, or chance for the defaulting party to be heard, vest title to the land in the state.

Griffin v. Mixon, 38 Miss., 424. The Missouri statute (1865) did not vest in the state the absolute title to lands which for want of bidders were struck off to the state, but only gave a lien for the taxes. State v. Heman, 7 Mo. Ap., 584; 70 Mo., 441. Laws for the forfeiture of lands for non-payment of taxes are to be strictly construed as between the owner and a purchaser from the state. Tolman v. Hobbs, 68 Me., 316. If, land is imperfectly described in the assessment roll it cannot be forfeited for default in payment. Re Baton Rouge Water Works, 34 La. An., 255.

4 See St. Anthony Co. v. Greely, 11 Minn., 321; Baker v. Kelley, 11 Minn., 480; Hill v. Lund, 13 Minn., 451.

5 Wild's Lessee v. Serpell, 10 Grat., 405; Hale v. Branscum, 10 Grat., 418; Flanagan v. Grimmet, 10 Grat., 421; Usher v. Pride, 15 Grat., 190; Hodgdon v. Wight, 36 Me., 326; Adams v. Larrabee, 46 Me., 516, 519.

6 Fairfax's Devisee v. Hunter's Lessee, 7 Cranch, 603, 625; Schenck v. Peay, 1 Dillon, 267; Bennett v. Hunter, 18 Grat., 100; S. C. in error, 9 Wall., 326, 336; Dickerson v. Acosta, 15 Fla., 614.

manner as any future legislature may direct," did not work an absolute forfeiture, and the owner might redeem afterwards. But this was partly, at least, on the ground that the legislature had never treated this forfeiture as vesting a title in the state for any other purpose than as security for taxes due and owing. That statutes of forfeiture are strictly construed is an elementary principle, and there are no cases in which the rule requiring a substantial compliance with all the impor

1 Thevenin v. Slocum's Lessee, 16 Ohio, 519, 532. This case is cited and relied upon in St. Anthony, etc., Co. v. Greely, 11 Minn., 321. See, also, Woodward v. Sloan, 27 Ohio St., 592. Where lands are to be forfeited to the state on non-payment of the tax and a record of the forfeiture made, a sale of the land as forfeited, when there is no such record, is bad. Magruder v. Esmay, 31 Ohio St., 222.

2 See Schenck v. Peay, 1 Dill., 267; Lohrs v. Miller's Lessee, 12 Grat., 452; Twiggs v. Chevallie, 4 W. Va., 463; Scott v. People, 2 Ill. Ap., 642; Smith v. People, 3 Ill. Ap., 380; Chicago, etc., R. Co. v. Boller, 7 Ill. Ap., 625.

A subsequent taxing of lands by the state, and the receipt of taxes from the former owner, was held in Hodgdon v. Wight, 36 Me., 326, to be no waiver of the forfeiture. The same decision was made in Crane v. Reeder, 25 Mich., 303, which was a case of escheat. In that case Campbell, J., discusses at length the question of necessity of inquest of office, and concludes that it is not necessary.

If, under the statute, the title to land condemned relates back to the commencement of proceedings, taxes laid thereon pending the condemnation do not become a charge upon the former owner. Sherwin v. Wigglesworth,

129 Mass., 64.

In Illinois, real property is forfeited to the state, within the meaning of the tax law, when "at any regular tax sale, under the revenue act, the collector shall offer the property for sale, and it shall not have been sold for want of bidders." Then it is the duty of the clerk to add to the tax for the current year on such property the back taxes, interest and penalties. Thereafter it becomes unimportant whether a judgment for taxes for a prior year is in strict conformity to statute. The land is subject to the penalties, interest and costs, whether the forfeiture was in due form or not. Nor by paying the current taxes of a year, after forfeiture, can the owner avoid paying the taxes, interest and penalties already added thereto for former years. Biggins v. People, 106 Ill., 270. See, further, People v. Gale, 93 Ill., 127; People v. Smith, 94 Ill., 226; Belleville Nail Co. v. People, 98 Ill., 399. In South Carolina, the state must prove its title by forfeiture if it relies upon it. State v. Thompson, 18 S. C., 538. In Louisiana, a purchaser after forfeiture from the original owner acquires his right to redeem, but not a right to enjoin a sale by the state. Geren v. Gruber, 28 La. An., 694; Morrison v. Larkin, 26 La. An., 699; Garner v. Anderson, 27 La. An., 338. As to what is meant by forfeiture in that state, and the constitutional right to declare it, see Morrison v. Larkin, 26 La. An., 699.

tant provisions of the statute will more rigidly be insisted upon.1

Where the power of legislation ipso facto to work a forfeiture is in question, it is important that there be a clear and precise understanding of what is intended in the use of this word forfeiture. The usual method of enforcing the payment of taxes upon property is by putting the property up at a public sale. No one questions the right to do this, and no one doubts that the sale, if fair and made in compliance with the law, and after all the necessary preliminary steps have been taken, vests a perfect title in the purchaser to the full extent that the statute shall declare. No judicial proceedings are required to perfect the title, and if the purchaser have need of a resort to them, in order to obtain possession, it is only what might occur to any owner of property under any undisputed title. In what important particular does this differ from the case of forfeitures, except that to the proceedings which are to work the forfeiture there is added the one requirement of a public sale? But there are in the sale no elements of an adjudication; it does not stand in the place of one; its purpose is only to bring to the public treasury the tax for which the sale is made. Incidentally in the proceedings a purpose is kept in view, not to sacrifice any farther than shall be necessary the interests of the owner; and to this end notice of the sale is required, with a view to invite competition among bidders. But we are not aware of any constitutional principle that entitles a party to have his duty coerced by a public sale of property, rather than by a forfeiture of it. A sale by a ministerial officer which, as the closing step in administrative action, is to divest the owner of his title, is as much obnoxious to the charge that it deprives him of his freehold without a hearing, as is the legislative forfeiture. Whatever there is of the nature of judicial inquiry lies back of these proceedings in the action of the assessing officers, and, as has already been stated, is the same in both If the owner is condemned without a hearing in the one case, he is in the other.

cases.

1 See Hopkins v. Sandige, 31 Miss., 668, 676, in which the delay of a few days after the time fixed by statute for the return of the list was held to defeat the forfeiture. See, also, Kinney v. Beverley, 2 H. & M., 318, 331; Dentler v. State, 4 Blackf., 258; Williams v. State, 6 Blackf., 36.

It may be that a public sale would be most advantageous to the person taxed, because it might leave to him some portion of his property after the tax was satisfied. In the vast majority of cases, however, the sale is of the whole land, and the possible benefit is not had. But there is no imperative principle of government which requires the legislature, in prescribing rules of administration, to fix upon those which would be most for the advantage of a negligent or defaulting citizen. We suppose, on the other hand, that the legislature has very ample discretion to determine the rule on its own view of public policy. If it deems a sale more advantageous to the state than a forfeiture, it will provide for it; otherwise not.

But if by forfeiture is understood the vesting in the state a title which shall be absolute and beyond dispute, the question presented is different. It is impossible that there can be any right to declare such a forfeiture, except as the result of an adjudication to which the owner was a party, which has deter mined that the default, upon which the forfeiture was based, exists in fact, and that the requisite steps which were to precede the forfeiture have actually been taken. In some judicial tribunal the party whose freehold is seized has a right to a hearing on these questions: a constitutional right, if constitutional protections to property are of any avail. But if by forfeiture is understood only that without sale there shall pass to the state such title as a purchaser would acquire if a sale were to take place, the declaration of forfeiture can, of itself, work no absolute deprivation of right. If the default existed and the tax proceedings are regular, the state has the title; if not, it remains in the person taxed. And, in the absence of any statute changing the burden of proof, it would devolve on the state to prove the regularity of the proceedings, precisely as it would on the purchaser when demanding the land under the deed given on a purchase.1

1 See Kinney v. Beverly, 2 H. & M., 318, 331; Hopkins v. Sandige, 31 Miss., 668, 676. See, also, post, chapter XVII.

The proceedings for forfeiture, where a judicial prosecution is required, it seems unnecessary to consider. An intent to defraud is made a ground of forfeiture under some of the federal revenue laws. See United States v. Hogsheads of Tobacco, 2 Bond, 137; United States v. Caddies of Tobacco, 2 Bond, 305; Henderson's Spirits, 14 Wall., 44. The statute imposing the

1

Liability for taxes in special cases: Subrogation. It very often occurs that the state is in condition to collect its taxes, and does collect them, from persons who, as between themselves and others, by reason of contract relations, or other reason, ought not to pay them. In such cases the general rule is that the party who has made payment is entitled to recover in an appropriate suit at law against the party who should have paid. Some of these cases will now be mentioned.

Mortgagor and Mortgagee. Where the land is taxed, the mortgagor should pay the taxes on mortgaged land unless the statute provides otherwise; but if the duty of payment is neglected, the mortgagee may be compelled to pay to save his security from being cut off by sale of the land. Payment in such a case does not constitute a separate debt in his favor against the mortgagor,' but entitles him to add the amount to the sum owing on his security, and collect the whole together.2 He cannot, however, even on the mortgage, collect it as a separate debt after the mortgage debt is paid. And he should not assume that the tax will not be paid by the mortgagor until the latter is in default.4

penalty of forfeiture of land and buildings employed in violation of a revenue law, sustained as constitutional. United States v. McKinley, 4 Brewster, 246. See United States v. Spreckens, 1 Sawy., 84; Quantity of Tobacco, 5 Ben., 407.

That there must be full showing of the facts upon which the right of forfeiture depends, see State v. Thompson, 18 S. C., 538.

1 Vincent v. Moore, 51 Mich., 618; Johnson v. Payne, 11 Neb., 269: Horrigan v. Wellmuth, 77 Mo., 542.

2 Hogg v. Longstreth, 97 Pa. St., 255; Faure v. Winans, Hopk. Ch., 283; Burr v. Veeder, 3 Wend., 412; Quin v. Brittain, Hoff. Ch., 353; Mix v. Hotchkiss, 14 Conn., 32; Brown v. Simons, 44 N. H., 475; Stanclift v. Norton, 11 Kan., 218; Eagle Fire Ins. Co. v. Pell, 2 Edw. Ch., 631; Marshall v. Davies, 78 N. Y., 414; Sidenberg v. Ely, 90 N. Y., 257; Barthell v. Syverson, 54 Ia., 160; New Haven Sav. Bank v. Atwater, 51 Conn., 429. An executor or administrator may pay taxes on property mortgaged to the estate, or a creditor may do so to protect his own interest, and be entitled to reimbursement on foreclosure. Whittaker v. Wright, 35 Ark., 511.

3 Vincent v. Moore, 51 Mich., 618. See Manning v. Tuthill, 30 N. J. Eq., 29. Compare Horrigan v. Wellmuth, 77 Mo., 542; Nopson v. Horton, 20 Minn., 268.

4 Pond v. Drake, 50 Mich., 302. Compare Brevoort v. Randolph, 7 How. Pr., 398.

One who at a foreclosure sale buys property which is subject to taxes