Officer not to buy. In order that there may be free competition, it is essential that the officer who makes the sale should act as salesman only, and not become interested in the purchases. He cannot be allowed to occupy the inconsistent positions of purchaser and seller, in which his cupidity would draw him in one direction and his duty in another. The law cannot safely intrust the securities which are devised for the protection of private parties to the care of those who are interested to prevent their accomplishing the purpose for which they are provided. No provision of law, it is believed, would ever be made which would allow official integrity to be subjected to the trial of such conflicts between interest and duty, as would be sure to arise if the officer were allowed to bid at a sale where his duty would be to obtain the highest practicable bid in the interest of another, while his interest would be to so manage as to obtain the lowest. For the officer voluntarily to put himself in that position is regarded as a fraud on his part upon the law; and on grounds of general public policy, the sale which he makes to himself is void. On no other principle can integrity and good faith be secured in proceedings of this ex parte character.

In Reeve v. Kennedy, 43 Cal., 643, it is held that a sale cannot be attacked collaterally for fraud in obtaining it.

Holders of separate judgment liens upon the land sold, for the purpose of protecting the liens and preventing an adverse lien from attaching, may agree to jointly bid off the land. Such agreement does not necessarily prevent competition among bidders though there is none between the lien holders; but for the protection of their own interests they may control competition between themselves. "They were under no obligation to bid against each other, and their omission to do so, whether by agreement or otherwise, if not done for the purpose of preventing competition among bidders, will not impair the validity of such sale." Morrison v. Bank of Commerce, 81 Ind., 335.

1 Pierce v. Benjamin, 14 Pick., 356; Clute v. Barron, 2 Mich., 192; Payson v. Hall, 30 Me., 319; Taylor v. Stringer, 1 Grat., 158; Chandler v. Moulton, 33 Vt., 245; McLeod v. Burkhalter, 57 Miss., 65. In Fox v. Cash, 11 Pa. St., 207, it is decided that this principle will not preclude a clerk in the treasurer's office from becoming a purchaser. To the same effect is Wells v. Jackson Manuf. Co., 47 N. H., 235, and O'Reilly v. Holt, 4 Woods, 645. Or a deputy, if he has nothing to do with the sale. Hare v. Carnall, 39 Ark., 196. The officer selling cannot act as agent for others in buying; though if he does so, and the purchase is afterwards set aside on that ground, the owner must refund to the purchaser what he has paid. Everett v. Besbe, 37 La., 452. In Kansas it is held that an officer's payment under his attempted purchase does not divest the state's lien, nor operate as a payment for the

Sale in separate parcels. The sale should also be made of the parcels of land as they appear in the list. This is the general rule. Exceptions are made by statutes for various reasons. Where a tract is capable of subdivision, the statute may author ize the owner of a part to relieve such part from liability by paying a proportionate part of the tax. Under some statutes, any one who will distinctly define any portion of an unimproved tract of land may pay the tax upon that portion. So statutes permit the owner or claimant of an undivided interest to pay upon that by itself. In any of these cases the part of the land, or the interest in the land, upon which the tax is not paid, remains subject to sale and may be sold by itself. But in other respects the listing is to be followed in the sale.

To

benefit of the lot owner; that in fact what he pays is forfeited to the state while the tax remains a charge as before. Haxton v. Harris, 19 Kan., 511. See Harris v. Drought, 24 Kan., 524. It seems that in Iowa a purchase made by the officer or his deputy is valid by statute. Ellis v. Peck, 45 Ia., 112. If a sale made to an officer is set aside in Arkansas, he is held entitled to be reimbursed what he paid and interest. Cole v. Moore, 34 Ark., 582. An officer has no right to buy for the county when not expressly authorized by law. Wilkins v. Benning, 51 Ga., 9.

Hayden v. Foster, 13 Pick., 492; Shaw v. Kirkwood, 24 Kan., 476; Kregelo t. Flint, 25 Kan., 695; State v. Sargeant, 76 Mo., 557; Farnham v. Jones, 32 Minn., 7.

2 See Fellows v. Denniston, 23 N. Y., 420.

3 Without express statutory authority, undivided interests cannot be sold separately when the tract is assessed as an entirety. Roberts v. Chan Tin Pen, 23 Cal., 259; Cragin v. Henry, 40 Ia., 158. In Vermont, it appears that a collector's deed of land sold for taxes, which describes the land simply as so many acres of a large lot, passes an undivided interest in such lot equal to the proportion which the number of acres sold bears to the whole number of acres in the lot. Sheafe v. Wait, 30 Vt., 735. Where a quarter section is wrongly assessed as one parcel, the owners of distinct parcels of it may pay the taxes on their parcels, leaving the remainder to be sold. Lawrence v. Miller, 86 Ill., 502; Pennell v. Monroe, 30 Ark., 661. But the officer cannot receipt as for undivided interests in such a case, where the ownerships are in severalty. Lawrence v. Miller, 86 Ill., 502. Where the owner of an undivided interest is permitted to pay on that interest, a sale of the remaining interest is valid. Peirce v. Weare, 41 Ia., 378.

Ballance v. Forsyth, 13 How., 18; Walker v. Moore, 2 Dill. C. C., 256; Morton v. Harris, 9 Watts, 319; Woodburn v. Wireman, 27 Pa. St., 18; Hayden v. Foster, 13 Pick., 492; Willey v. Scoville, 9 Ohio, 43; Atkins v. Hinman, 2 Gilm., 437; Spellman v. Curtenius, 12 Ill., 409; Pitkin v. Yaw, 13 Ill., 251; Penn v. Clemans, 19 Ia., 372; Ware v. Thompson, 29 Ia., 65; Martin v. Cole, 38 Ia., 141; Moulton v. Blaisdell, 24 Me., 283; Wallingford

group lands in the sale which are assessed as separate interests is incompetent, even though they be owned by the same person. Each parcel is chargeable with its own taxes, and is to be redeemed by paying them; but such a joint sale charges it with the tax upon the other also, and is like issuing one execution upon several judgments, and selling jointly the lands which are charged with separate liens. It may or may not be v. Fiske, 24 Me., 386; Andrews v. Senter, 32 Me., 394; State v. Richardson, 21 Mo., 420; Baskins v. Winston, 24 Miss., 431. Though a sale together of several lots which really constitute one tract may be good, yet this can only be so when they were assessed together, or when they constitute a definite portion or fraction of what was assessed, so that, by mere division or subtraction, the amount of tax chargeable on the property sold can be determined from the assessment roll. MeQuesten v. Swope, 12 Kan., 32. In Pennsylvania, the sale of seated lands with unseated is void for want of jurisdiction. Dietrick v. Mason, 57 Pa. St., 40. Unseated lands are sold without regard to ownership. Reading v. Finney, 73 Pa. St., 467. See Cuttle v. Brockway, 32 Pa. St., 45. In New York, it is held competent, where distinct interests are held subject to a lien for taxes, to provide by statute for a judicial sale of the whole fee, on the application of one party, after publication of notice to unknown owners. Jackson v. Babcock, 16 N. Y., 246.

1 Andrews v. Senter, 32 Me., 394; Woodburn v. Wireman, 27 Pa. St., 18; Hayden v. Foster, 13 Pick., 492. See Crane v. Randolph, 30 Ark., 579; Rankin v. Miller, 43 Ia., 11. In Minnesota, when an assessment is of a whole block, the treasurer cannot sell in parcels. Moulton v. Doran, 10 Minn., 67. In Illinois it seems that if distinct tracts belonging to one person are offered separately and no bids received, then two may be offered together, even though not adjoining. Douthett v. Kittle, 104 Ill., 356. To sell one's "right, title and interest" in land is not equivalent to a sale of the land itself. Clarke v. Strickland, 2 Curt. C. C., 439. Where the sale was of an undivided interest when all was assessed together, the sale was held void. Roberts v. Chan Tin Pen, 23 Cal., 259. It would be otherwise if the statute provided for the sale of undivided interests after the tax on other interests had been paid. If sale of part of a tract is enjoined, the remainder, it seems, may be sold separately. Lane v. Succession of March, 33 La. An., 554.

* Hall v. Dodge, 18 Kan., 277; Mathews v. Buckingham, 22 Kan., 166. Where a sale of distinct parcels as an entirety is invalid, the question whether the land is to be regarded as one or more parcels is not always de termined merely by the usual description of the land. Its use and nature control the description. And lots described as lots 2 and 3 in a town may be sold as one parcel if inclosed, built upon and occupied as one. Weaver v. Grant, 39 Ia., 294. See Greer v. Wheeler, 41 Ia., 85. If a deed shows that several parcels were sold together in bulk, and that they are separate and distinct parcels not contiguous to each other, the deed is void on its face. Cartwright v. McFadden, 24 Kan., 662. See Farnham v. Jones, 32

important to the owner that he have the opportunity of a separate redemption, but the fact that it possibly may be so is sufficient reason why the law should protect the right. But where parcels are separately sold, there is no objection to their being united in one conveyance if purchased by the same person, and their being so joined raises no presumption that they were not separately sold.1

Surplus bond. Various methods are adopted in different states to save something to the owner, if that shall be possible, when his land is sold. One of these is, to have the land put up for sale for what it will bring, and if the bid exceed the tax, with interest and expenses, require the surplus to be deposited in the state or county treasury for the benefit of the party who shall show his right. Another is to require a bond to be given by the purchaser to account for the excess over the taxes and charges, which bond shall be a lien on the land. Still another

Minn., 7. Where the statute requires a sale to be in parcels not larger than forty acres, it must be strictly followed. Clarke v. Rowan, 53 Ala., 400. But it seems that in selling for a federal tax, if the officer acts in good faith the sale is not void because of two parcels being sold jointly. Springer v. United States, 102 U. S., 586. See Keely v. Saunders, 99 U. S., 441.

Towle v. Holt, 14 Neb., 221; Watkins v. Inge, 24 Kan., 612. The joinder of two parcels in one conveyance does not raise a presumption that they were sold together. Towle v. Holt, 14 Neb., 221. And if two tracts be deeded as one parcel, the deed may be supported by evidence that they were separately sold, or that they were sold as one because occupied as one. Greer v. Wheeler, 41 Ia., 85.

A misdescription of one parcel of land in a deed does not affect the deed as to the remainder. Watkins v. Inge, 24 Kan., 612. In Arkansas it is said that if two parcels are sold separately they may be embraced in the same conveyance, but the deed ought to show the separate sales. Pack v. Crawford, 29 Ark., 489; Pettus v. Wallace, 29 Ark., 476; Montgomery v. Birge, 31 Ark., 491.

2 Peters v. Heasley, 10 Watts, 208; Loud v. Penniman, 19 Pick., 539; People v. Hammond, 1 Doug. (Mich.), 276. The giving of the surplus bond is a condition precedent to the passing of the title to the purchaser at the tax sale. Sutton v. Nelson, 10 S. & R., 238; McDonald v. Maus, 8 Watts, 364; Donnel v. Bellas, 10 Pa. St., 341; Cuttle v. Brockway, 24 Pa. St., 145. As to suit upon it, see Crawford v. Stewart, 38 Pa. St., 34. That there is no presumption such a bond was given, where the tax purchaser does not take possession or pay taxes, see Alexander v. Bush, 46 Pa. St., 62. As to the land owner's right to any surplus, see Workingmen's Bank v. Lannes, 30 La. An., 871.

If land is sold to the United States for a federal tax and bid in for more

is to require so much of the land to be sold as may be requisite to satisfy the tax and charges, either prescribing a general rule as to where the parcel sold shall be taken off, or allowing a discretion to the officer in that regard.

Excessive sale. It has been said that in the absence of any statute limiting the officer's right to sell, to so much as would be requisite to pay the tax and charges, a restriction to this extent would be intended by the law. Whether this is so or not is perhaps not very material, as it is not for a moment to be supposed that any statute would be adopted without this or some equivalent provision for the owner's benefit. And such a provision must be strictly obeyed. A sale of the whole when less would pay the tax would be such a fraud on the law as to render the sale voidable at the option of the land owner,2 and the deed would be void on its face if it showed the fact of such excessive sale. So a sale of the remainder after the tax had been satisfied by the sale of a part would also be void, for the very plain reason that the power to sell would be exhausted the moment the tax was collected.*

3

than is due, the United States is liable to the land owner for the surplus. United States v. Lawton, 110 U. S., 146.

1 O'Brien v. Coulter, 2 Blackf., 421; Margraff v. Cunningham's Heirs, 57 Md., 585; Townsend, etc., Bank v. Todd, 47 Conn., 190. The power to provide by law that the whole should be sold, when not necessary to pay the tax, was denied in Martin v. Snowden, 18 Grat., 100; Downey v. Nutt, 19 Grat., 59.

2 Loomis v. Pingree, 43 Me., 299; Lovejoy v. Lunt, 48 Me., 377; French v. Patterson, 61 Me., 203, 210; Ainsworth v. Dean, 21 N. H., 400; Lyford v. Dunn, 32 N. H., 81; Jaquith v. Putney, 48 N. H., 138; Avery v. Rose, 4 Dev., 549; Love v. Wilbourn, 5 Ired., 344; Baskins v. Winston, 24 Miss., 431; Crowell v. Goodwin, 3 Allen, 535; Stead's Executors v. Course, 4 Cranch, 403; Mason v. Fearson, 9 How., 248; French v. Edwards, 13 Wall., 506; Whitmore v. Learned, 70 Me., 276; Straw v. Poor, 74 Me., 53; Workingmen's Bank v. Lannes, 30 La. An., 871. Where lands are to be levied upon for taxes, and an excessive levy is made with the assent of the owner, this assent precludes complaint on that ground afterwards. Jones v. Johnson, 60 Ga., 260.

3 Allen v. Morse, 72 Me., 502.

4 See Washington v. Pratt, 8 Wheat., 681; Mason v. Fearson, 9 How., 248. When the land as assessed consists of several distinct parcels constituting one tract, if the several parcels are offered separately and no bids obtained. the whole may then be offered together. Slater v. Maxwell, 6 Wall., 268. Where a quarter section contained several village lots, it was held incompe