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in the other the taxes and charges, without doing unnecessary injury to the debtor or the delinquent tax-payer. If there be no statute regulating the matter, the same principle would be enforced by the courts, and no more would be allowed to be sold than was necessary for the purpose of paying the delinquent taxes and charges. Bartol, J., in speaking of the Maryland statute, that the collector shall not sell any more of the tract of land than is sufficient to pay the taxes and legal charges, says: "It merely asserts a general principle as to sales by sheriffs and collectors, often enforced upon grounds of equity and reason, which forbid selling a whole tract of land to pay a small sum of when a few acres would be sufficient." 2 In this case money, the land was valued at $1,200, and the whole tract was sold for $1.25; and in a case in Georgia, two tenements standing on one lot of land, one valued at $2,000 and the other at $5,000, were both sold to pay a tax of less than $100. Such sales were an abuse of the power vested in the officer, and were declared void.s

In Mississippi, the statute in reference to the sale of lands for unpaid taxes, directs that the officer shall not sell in any one lot more than one-eighth of a section, and if one shall not be sufficient, as many eighths are to be sold as will be sufficient. There has been considerable discussion as to the proper mode of conducting a sale under this statute, but the court decided that one-eighth should first be put and if that did not bring the necessary amount, then two-eighths of a section should be put up, and so on until a quantity was put up which would bring an amount sufficient to pay the taxes and charges. The dissenting judges thought that one-eighth should be sold, and if that was not sufficient then another eighth should be sold, and so on, until enough was sold to pay the taxes and charges.1

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Where the statute provides, that if the tract of land is not divisible, so as to enable the collector by a sale of part to raise the whole amount of the tax and charges, he may sell the whole tract, this does not authorize him to sell an undivided interest, such as one-half, in the land, to pay the taxes and charges. If he sells part of the tract he must sell by metes and bounds. He cannot make the purchaser a tenant in common with the owner against his consent.5

1 O'Brien v. Coulter, 2 Blackf. 421; Register v. Bryan, 2 Hawks, 17; Slater v. Maxwell, 6 Wall. 268.

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2 39 Md. 465.

Doane v. Chittenden, 25 Ga. 103. The statute in this State provides for the sale of so much thereof as will pay the taxes and costs."

4 Hodge v. Wilson, 12 Smedes & M. 498; affi'd in Boisgerard v. Johnson, 23 Miss. 122; Barkins v. Winston, 24 Miss. 431.

5 Loud v. Penniman, 19 Pick. 539; s. P. 12 Smedes & M. 498.

In applying the principle that only so much shall be sold as is sufficient to pay the taxes and charges, the courts differ somewhat as to what is necessary to be shown by the purchaser to bring the case within this principle, one of the courts holding that when the whole tract is sold, it must appear affirmatively from the record, that the sale of the whole was necessary to pay the taxes and charges, or that fractional parts were offered,' and another even that when less than the whole tract is sold, and it brings more than enough to pay the taxes and charges, it must appear that this part could not be again divided without injury to the sale of it. So also if the whole tract is sold, and the record does not show the amount of the tax for which it is sold, the sale is void. Marshall, J., "The sale ought to have been of so much land as would satisfy the tax in arrear. Should it be true that the land was actually liable for the whole sum for which it sold, it would be incumbent on the vendee to prove that fact, for it cannot be presumed." 3

Where the collector's return stated that he sold the whole tract to the purchaser, he not being willing to pay taxes and charges for a less quantity, and in the deed to the purchaser says, he sold sufficient land to pay the taxes and charges, from this evidence it was presumed that he sold no more than was necessary, and the sale was sustained.* And where under the statute land is forfeited to the State if no one will pay the taxes and charges, it appeared that the collector offered all the land to any one who would pay the taxes and charges, and not each lot separately, it was presumed that no injury was done, and the action of the collector sustained."

Location.-In Virginia, Kentucky and North Carolina, where less than the whole tract is sold, or where the whole is sold, the purchaser is required to have the land purchased located by actual survey by the county surveyor, and the survey is made a matter of record.

Can there be a valid sale of a part of a tract, without designating the boundaries of the tract sold? A sale of thirty-six acres, part of a lot of land, was held valid. The vendee in such case becomes a tenant in common with the former owner, his interest being in the ratio of thirty-six to the whole number of acres in the tract. opposition to the cases just cited.8

1 French v. Patterson, 61 Maine, 203;

2 Crowell v. Goodwin, 3 Allen, 533.

Ives v. Lynn, 7 Conn. 505.

Lovejoy v. Lunt, 48 Maine, 377.

This is in

3 Stead's Ex'rs . Course, 4 Cranch, 403, 414.

5 Biscoe v. Coulter, 18 Ark. 423.

Code of Virginia, ed. 1873, ch. 38, § 18; Jones v. Gibson, 2 Taylor, 41; Currie v.

Fowler, 5 J. J. Marsh. 145.

Sheafe v. Wait, 30 Vt. 735.

8 4 Cranch, 403, 414; 19 Pick. 539.

In Pennsylvania, under a statute authorizing "the treasurer to sell the whole or any part of such tracts of unseated lands as he may find necessary for the payment of the taxes due thereon respectively," the court construed this statute to authorize a sale and conveyance of a part of a tract, designating the quantity but not the locality, and that such a deed gave the purchaser an unrestricted choice of locality, as a necessary incident of the sale and a consequence of a reasonable interpretation of the statute. The court say that at the time the act was passed, it was impossible to describe the tracts of land sold by locality; it was difficult to ascertain even the township of these wild lands; and the doctrine of the common law that it is only in private sales that the grantee may elect the location of the land, must give way to the object of the statute, which is for the benefit of the owner.1 This case expressly overrules the case of Erwin v. Helm, styling the opinion as to the point under discussion obiter dicta. The same judge (Gibson) delivered the opinion of the court in each case.

A tract of 990 acres was assessed for taxes a number of years as unseated land, when an intruder entered on a part of the tract and marked off 150 acres. The tract was then assessed as 559 acres to the original owner, and 150 acres to the intruder. The 150 acres was sold for taxes, and subsequently the 559 acres was sold and purchased by the county commissioners. The court held that the tract could not be thus divided against the consent of the owner, and the sale of the 150 acres was void. But as to the sale to the county commissioners, they took the whole tract, and the description as 559 acres did not limit their purchase, the tract of land as a whole being debtor for the taxes without reference to the owner3-affirming a previous case in which there was a tract supposed to contain 900 acres, from which sales were made of various portions, and then the residue was sold as 200 acres, and although it really contained 600 acres, the purchaser was considered entitled to the whole.1

In California, the statute provides that "the owner, or in default of the owner the tax collector, may designate less than the whole tract by metes and bounds, and it may be sold as thus designated." In construing the statute the courts have said that if the description of the whole tract is definite and accurate, and is inserted in the tax deed, then if a portion of it is sold, such a description of the portion sold as will enable its boundaries to be determined by extrinsic evidence is a sufficient compliance with the statute.5

1 Coxe v. Blanden, 1 Watts, 533.

3 Reading v. Finney, 73 Penn. St. 467.

13 Serg. & Rawle, 151.

4 Brown v. Hays, 66 Penn. St. 229.

5 Brown v. Murphy, 29 Cal. 326; O'Grady v. Barnhisel, 23 Cal. 287; see statute, 23 Cal. 259.

In Illinois, the statute provided that the portion sold should be taken off the east side of the tract, extending the whole length on that side, and proportioned in width so as to embrace the number of acres sold. There was a sale of one acre, part of two fractional quarter sections, running to a point eastwardly, so that there was no east side to the tract. A line drawn north and south, far enough west of the most easterly point to make one acre, was considered a sufficient compliance with the statute.1 The intention of the act was that where less that the whole tract was sold, the part sold should be taken from the eastern portion of the tract, although the tract might be of such a form than strictly speaking it has no eastern side. "To construe the act," says the court, "so as to exempt the tract from the general revenue law would be emphatically sticking in the bark.'

6

In a case somewhat similar, under the same statute, the sale was considered invalid by the Supreme Court of the United States, the sale was of one acre of land off the east side of the southwest and southeast fractional quarters of section number nine. In the two fractional quarters there appears to have been about 150 acres, and it is not said in what form the acre was to be surveyed. McLean, J.: Certainty in such a case is necessary to make the sale valid, for on the form of the acre its value may chiefly depend, and there is nothing on the face of the deed, or in the proceeding previous to the sale which supplies this defect."2

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The following descriptions of parts of tracts have been considered insufficient: All that tract of land part of number 300, containing 250 acres ; All that tract owned by the defendant lying within patent to Hardenburgh; 10 acres in lot 26, in the 11th range, in the town of Columbia. The general doctrine deducible from the cases is, that where a portion of a tract is sold, there must be such a certainty in the description, that the land can be easily identified.

1 Spellman v. Curtenius, 12 Ill. 409.

3 Haven v. Cram, 1 N. H. 93.

5 Harvey v. Mitchell, 11 Foster, 575.

Ballance v. Forsyth, 13 How. 20, 23.

4 Jackson v. Rosevelt, 13 Johns. 97.

CHAPTER XVI.

PROCEEDINGS SUBSEQUENT TO THE SALE.

§ 114. Acts to be done by the Tax Officers.-The officer conducting the sale is required to make a return of his proceedings in connection with the sale. What this return should contain, the time when it is to be made, and the disposition to be made of it, are matters that are generally prescribed by statute. Whatever the statute prescribes must be performed in accordance with its terms. The nature of the return is entirely different from that of a sheriff on an execution issued on a judgment. There his precept constitutes his authority to sell, and if the power exists, the sale is valid as to the purchaser, although no return is made on the execution. The validity of the title of the purchaser in such cases depends on the authority to sell conferred by the judgment and execution. But in tax sales the title of the purchaser depends on a strict conformity to all the provisions of the tax laws. The proceedings are in invitum, and a failure to comply with all the statutory provisions, whether the acts required precede or follow the sale, will be fatal to the title of the purchaser.

The return usually contains a description of the land, the amount of the tax due, the name of the purchaser, the price for which the land was sold, the time of sale, &c. The object is to perpetuate a history of the proceedings by record evidence, for the benefit of the owner, the purchaser, and others interested. The return must set out the facts, and the manner in which the officer performed his duty, that the court may determine whether the statute has been complied with. Where the statute required notice by publication in some newspaper designated by the court, or by posting not less than one handbill in each municipal township in the county where the lands. are situate, at least four weeks prior to the July term of the County Court, a recital in a tax deed, that "the collector on the tenth day of May, 1865, advertised the real estate for sale according to law, to pay and satisfy the taxes and penalties remaining due," &c., is insufficient. A return in these words, "Charles Davis bought of Daniel

1 Spurlock v. Allen, 49 Mo. 178.

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