It has been shown in a preceding chapter that an excessive levy is void, whether it is made excessive by including with lawful taxes those which are unlawful, or in any other manner If the levy would be void, there would of course be nothing to uphold a sale.1 And if a valid levy were to be increased afterwards by unlawful additions, the sale would be equally bad. The statutory power is a power to sell for lawful taxes and lawful expenses, and if it is exceeded by including unlawful items of either class, the power is exceeded and its exercise is invalid in toto from the manifest impossibility of saving the sale in part when the invalidity extends to the whole. It is to be presumed, when the sale has been made for a sum in part illegal, that some undefined and undefinable portion of the land has gone to satisfy an illegal demand, and that such part would not have been sold at all if only what was lawful had been called for.3

tent to sell off an acre from one side for the tax on the whole. Ballance v. Forsyth, 13 How., 18. Under the Massachusetts statute providing that if an estate is capable of division the collector may sell so much thereof as would be sufficient to discharge the taxes and intervening charges, it must appear by the collector's deed, or otherwise, that the land was so divided that no greater portion was sold than was necessary to satisfy the tax and charges, or that it could not be conveniently divided to that extent. Crowell v. Goodwin, 3 Allen, 535., Undivided interests are not to be sold under this statute. Wall v. Wall, 124 Mass., 65; Sanford v. Sanford, 135 Mass., 314. 1 See ante, pp. 429-431.

2 McQuilkin v. Doe, 8 Blackf., 581; Hutchens v. Doe, 3 Ind., 528; Hardenburgh v. Kidd, 10 Cal., 402; Harper v. Rowe, 53 Cal., 233; Stockle v. Silsbee, 44 Mich., 561; Dogan v. Griffin, 51 Miss., 782; Beard v. Green, 51 Miss., 856; Shattuck v. Daniel, 52 Miss., 834; McCann v. Merriam, 11 Neb., 241; Covell v. Young, 11 Neb., 510; Pack v. Crawford, 29 Ark., 489; Young v. Joslin, 13 R. I., 675; Buttrick v. Nashua I. & S. Co., 59 N. H., 392; Treadwell v. Patterson, 51 Cal., 637. See Cuming v. Grand Rapids, 46 Mich., 150; McQuesten v. Swope, 12 Kan., 32. Sale void where an illegal percentage is added. Bucknall v. Story, 36 Cal., 67. Or illegal printing or other charges. Genthner v. Lewis, 24 Kan., 309. The rule applies where the tax is made excessive by the levy of an unauthorized percentage on the valuation. Wattles v. Lapeer, 40 Mich., 324; Silsbee v. Stockle, 41 Mich., 615. The sale being void, the purchaser has no lien for the sum paid. Naltner v. Blake, 56 Ind., 127.

3 Silsbee v. Stockle, 44 Mich., 501. In Iowa, by statute, a sale made for taxes, any one of which is valid, is to be sustained. See Corning Town Co. v. Davis, 44 Ia., 622. There is a similar statute in Michigan. See Upton v. Kennedy, 36 Mich., 215. If suit is brought to recover taxes, part of which are illegal, recovery may be had to the extent that they are legal. De

3

Sale to highest bidder and for cash. When the law requires the sale to be made to the highest bidder that method must be adopted, and the officer has no discretion to substitute any other. And as the conveyance must be in execution of a sale actually made, if the sale is made to one man, and by arrangement the deed is made to another, such deed can convey no legal title, though it might, perhaps, be a basis for relief in equity. The sale must be for cash. The officer can give no credit where the statute provides for none. The officer must not demand more than is due and make sale accordingly, for if he shall do so, the sale will be voidable, as already shown. If the statute requires the land to be sold to the person who will pay taxes, interest and charges for the smallest portion of the land, the officer must sell accordingly and cannot substitute a different sale. But, observing the statutory directions and precautions, and the principles of the common law and of public Fremery v. Austin, 53 Cal., 380. The sale should be for all the taxes for which a sale is ordered, or it will be bad. Tillotson v. Small, 13 Neb., 202; O'Donohue v. Hendricks, 13 Neb., 257; McGavock v. Pollock, 13 Neb., 536. See Worthen v. Badgett, 32 Ark., 496. As to what are legal costs in a sale, see Harper v. Rowe, 53 Cal., 233. The tax will be presumed legal if it may be so under the statute. Crooks v. Whitford, 47 Mich., 283.

See Cardigan v. Page, 6 N. H., 182; Bean v. Thompson, 19 N. H., 290. 2 Keene v. Houghton, 19 Me., 368. But the sale is not avoided by the delay of the officer in executing papers if in fact no credit was given. Maina v. Elliott, 51 Cal., 8.

3 Cushing v. Longfellow, 26 Me., 306. In Longfellow v. Quimby, 29 Me., 196, it was decided that, where the sale was for cash, the giving of credit to the purchaser afterwards would not defeat it. In Donnel v. Bellas, 34 Pa. St., 157, the treasurer took a note from the purchaser instead of cash. The sale was held void, and incapable of being affirmed by the treasurer by receiving payment after leaving office. See the same case, 10 Pa. St., 341; 11 Pa. St., 341.

4 Peters v. Heasely, 10 Watts, 208; Loud v. Penniman, 19 Pick., 539. A sale for the taxes of several years, one of which has been paid, is void. Kinsworthy v. Mitchell, 21 Ark., 145. And see Douglass v. Short, 3 Dev., 432. Sale of lands for the tax of the wrong party is void. Gardner v. Brown, Meigs, 354. Sale for two taxes, one of which is illegal, also void. Elwell v. Shaw, 1 Greenl., 339; Hardenburgh v. Kidd, 10 Cal., 402. A slight apparent excess will be presumed legal if it may be under the law. Drennan v. Beierlein, 49 Mich., 272.

5 Hewell v. Lane, 53 Cal., 213; Mora v. Nunez, 7 Sawy., 455; Carpenter v. Gann, 51 Cal., 193. In Louisiana a sale is bad if made for less than is due. Renshaw v. Imboden, 31 La. An., 661. If the whole land is sold, the deed should show that this became necessary. Brookings v. Woodin, 74 Me., 222.

policy, to which reference has been made, the officer may transfer to the purchaser the full interest in the land which has been assessed, and may convey a complete and perfect title, if such is the provision of the law on the subject, as in many states is the case.1 Inadequacy of price does not defeat such a sale; if

1 Osterberg v. Union Trust Co., 93 U. S., 424; Jones v. Randle, 68 Ala., 258; Sinclair v. Learned, 51 Mich., 335; Eaton v. North, 29 Wis., 75; Eastman v. Thayer, 60 N. H., 408; Langley v. Chapin, 134 Mass., 82.

Where the whole title is sold, it cuts off back taxes, unless other provision is made. Trego v. Huzzard, 19 Pa. St., 441; Irwin v. Trego, 22 Pa. St., 368; Same v. Same, 35 Pa. St., 9. In Indiana a tax sale does not cut off any existing right or claim in the state. Reid v. State, 74 Ind., 252; State v. Jones, 95 Ind., 175. In some states the sale is only of the title which the person taxed had at the time. Gates v. Lawson, 32 Grat., 12; Morrow v. Dows, 28 N. J. Eq., 459; Blackwell v. Pidcock, 43 N. J., 165. In Tennessee the sale is only of the title of the owner in whose name it was or should have been assessed, subject to existing liens for taxes. Nashville v. Cowan, 10 Lea. 209. Under a statute in Pennsylvania a first mortgage is unaffected by any tax on the land which was not a lien when the mortgage was recorded. Rhein Building Ass'n v. Lea, 100 Pa. St., 210. In Kansas, if there are successive tax deeds to different persons, each of them may be good as against the original land owner. Douglass v. Nuzum, 16 Kan., 515. In Georgia the tax lien is paramount to all other claims, but the officer in selling may sell a part or all of the land, or may sell subject to other liens. Verdery v. Dotterer, 69 Ga., 194. See, as to preserving the statutory precedence, Murray v. Bridges, 69 Ga., 644.

Statutes sometimes provide for selling a leasehold interest in lands; the person taking them who will pay taxes and charges for the shortest term of years. See Murphy v. Campau, 33 Mich., 71. So land mortgaged to the state may, under a proper statute, be sold for taxes subject to the lien, but cutting off the morgtagor's title. Harrison v. Williams, 39 Ark., 315. See Stockwell v. State, 101 Ind., 1.

It has already been stated that the separate interests of different owners are, under some laws, assessed separately. In such a case, a sale of the land for a tax assessed against one does not cut off the interests of others. Irwin v. Bank of United States, 1 Pa. St., 349. See Macay, Ex parte, 84 N. C., 63. Where the sale is to be of the smallest quantity of land, the officer must still sell an undivided interest, where such was the interest assessed. Harper v. Rowe, 55 Cal., 132.

A trustee, where the trust estate has been sold for taxes, has no superior rights to those of others, to be relieved against the sale. Dewey v. Donovan, 126 Mass., 335. See Greenwalt v. Tucker, 8 Fed. Rep., 792. An infant's land is subject to tax sale. Douglass v. Dickson, 31 Kan., 310.

Where the land is to be struck off to the bidder of smallest quantity, the law commonly designates where the quantity bid shall be set off. But in Iowa, by thus bidding, the purchaser takes an undivided portion. Brundige v. Maloney, 52 Ia., 218.

As to an occupant of land relying upon outstanding tax titles with

it did, the power to collect revenue by this method would be futile.1

Who may acquire tax titles. Some persons, from their relation to the land or to the tax, are precluded from becoming purchasers on grounds which are apparent when their relation to the tax and to the property is shown. The title to be given on a tax sale is a title based on the default of the person who owes to the public the duty to pay the tax, and the sale is made by way of enforcing that duty. But one person may owe the duty to the public, and another may owe it to the owner of the land by reason of contract or other relations. Such a case may exist where the land is occupied by a tenant, who, by his lease, has obligated himself to pay taxes. Where this is the relation of the parties to the land, it would cause a shock to the moral sense if the law were to permit this tenant to neglect his duty and then take advantage thereof to cut off his lessor's title by buying in the land at a tax sale. So the mortgagor, remaining in possession of the land, owes to the mortgagee a duty to keep down the taxes; and the law would justly be chargeable with which he is not connected, as a defense in suits brought against him, see Jeffery v. Hursh, 45 Mich., 60; Hess v. Griggs, 43 Mich., 397.

1 See Slater v. Maxwell, 6 Wall., 268; Shackleford v. Hooper, 65 Ga., 366. 2 That the person taxed cannot acquire a tax title based on his default in paying, see Garwood v. Hastings, 38 Cal., 216; McMinn v. Wheelan, 27 Cal., 300. Whether this is a universal rule will be considered further on. One who is not in possession, and whose only claim is under a void tax deed, is not precluded from buying. Neal v. Frazier, 63 Ia., 451.

3 Busch v. Huston, 75 Ill., 343; Bertram v. Cook, 32 Mich., 518. The circumstances will sometimes impose this duty without any actual contract. Williamson v. Russell, 18 W. Va., 613. In Kansas it seems a tenant not bound to pay the taxes may acquire the title by purchase. Weichselbaum v. Curlett, 20 Kan., 709. Compare Keith v. Keith, 26 Kan., 26, and Duffit v. Tuhan, 28 Kan., 292, which, under peculiar facts, hold the tenant not entitled to acquire a tax title. In Florida he is held not entitled generally. Petty v. Mays, 19 Fla., 652.

Where a receiver gives leases, the tenants cannot make use of their possession to redeem from a tax sale, and thus acquire rights in themselves as actual settlers. Buying from the state under such circumstances, they are to be deemed trustees for the benefit of the owners of the property in the hands of the court, and should be allowed the amount paid. Waggener v. McLaughlin, 33 Ark., 195.

A purchase at tax sale by a railroad company is not necessarily void on the doctrine of ultra vires. School Dist. v. Allen Co. Com'rs, 22 Kan., 568; Dickinson Co. Com'rs v. Land Co., 23 Kan., 196.

connivance at fraud and dishonesty, if a mortgagor might be suffered to permit the taxes to become delinquent, and then discharge them by a purchase which would at the same time extinguish his mortgage. There is a general principle applicable to such cases which may be stated thus: That a purchase made by one whose duty it was to pay the taxes shall operate as payment only; he shall acquire no rights as against a third party, by a neglect of the duty which he owed to such party. This principle is universal, and is so entirely reasonable and just as scarcely to need the support of authority. Show the existence of the duty, and the disqualification is made out in every instance.1

The cases to which attention is called in the margin, and many others to which they refer, will show the application of

1 Varney v. Stevens, 22 Me., 331; Gardiner v. Gerrish, 23 Me., 46; Fuller v. Hodgdon, 25 Me., 243; Mathews v. Light, 32 Me., 305; Coombs v. Warren, 34 Me., 89; Williams v. Hilton, 35 Me., 547; Haskell v. Putnam, 42 Me., 244; Magner v. Ins. Co., 30 La. An., 1357; Kezer v. Clifford, 59 N. H., 208; Cooper v. Jackson, 99 Ind., 566; Coxe v. Wolcott, 27 Pa. St., 154; Coxe v. Gibson, 27 Pa. St., 160; Oldhams v. Jones, 5 B. Monr., 458, 467; Blake v. Howe, 1 Aikens, 306; Willard v. Strong, 14 Vt., 532; Lacey v. Davis, 4 Mich., 140; Taylor v. Snyder, Wal. Ch., 492; Frye v. Bank of Illinois, 11 Ill., 367; Prettyman v. Walston, 34 Ill., 175; Higgins v. Crosby, 40 Ill., 260: Smith v. Lewis, 20 Wis., 350; Avery v. Judd, 21 Wis., 262; Bassett v. Welch, 22 Wis., 175; Phelan v. Boylan, 25 Wis., 679; Edgarton v. Schneider, 26 Wis., 385; Brown v. Simons, 44 N. H., 475; McLaughlin v. Green, 48 Miss., 175, 207; Carithers v. Weaver, 7 Kan., 110; Krutz v. Fisher, 8 Kan., 90; Leppo v. Gilbert, 26 Kan., 138; Annely v. De Saussure, 12 S. C., 488; Allison v. Armstrong, 28 Minn., 276; Kelsey v. Abbott, 13 Cal., 609; Barrett v. Amerein, 36 Cal., 322; McMinn v. Whelan, 27 Cal., 300; Coffinger v. Rice, 33 Cal., 408; Garwood v. Hastings, 38 Cal., 216; Savings and Loan Society v. Ordway, 38 Cal., 679; Lamborn v. County Courts, 97 U. S., 181; Leroy v. Reeves, 5 Sawy., 102; Williamson v. Russell, 18 W. Va., 613; Foley v. Kirk, 33 N. J. Eq., 170; Dayton v. Rice, 47 Ia., 429; Stears v. Hollenback, 38 Ia., 550. The purchaser of the equity of redemption is under the same disability. Trav. Ins. Co. v. Patten, 98 Ind., 209.

One who takes title to land subject to the incumbrance of a tax, and subsequently buys the tax title, acquires thus no additional title. Jacks v. Dyer, 31 Ark., 334. If a mortgagor has covenanted to pay the taxes, his tenant cannot set up a tax title as against the mortgagee, derived from the mortgagor's failure to pay. Dunn v. Snell, 74 Me., 22. One who has acquired an undivided interest under a quitclaim deed purporting to convey the whole is not precluded from buying a tax title originating in his grantor's default, and which when he took possession was held adversely to the whole original title. Sands v. Davis, 40 Mich., 14.