1 The amendments noticed are amendments allowed by the court in a case on trial, or in a direct proceeding to amend. A ministerial officer cannot, of his own motion, amend his returns so as to affect the title of parties, and make that valid which would otherwise be invalid. Where a town clerk has charge of the returns of the officer selling land, which are recorded in his office, and there is a defect in the advertisement, he cannot amend it at any time, and after the period of redemption has expired and the title vested in the purchaser, it cannot be corrected by a court on motion made for that purpose, because the effect would be to divest vested rights. Where the return of the officer of the sale was for 1,900 acres, and his certificate of sale was for 4,900 acres, and they were recorded in the office of the auditor, the latter officer was not permitted to amend the certificate to make it correspond with the return. So a collector cannot amend an uncertain description in a tax deed of land sold by him. But where a tax roll showed on its face an error of ten cents in the aggregate tax against a tract of land, which the county treasurer corrected before sale, the rule was not applied to such a correction, as it could not injure the owner, or affect the legality of the sale of land for taxes. It is a well settled rule that a sheriff may amend his return upon an execution at any time, so as to state the facts as they actually occurred, and he may even do this after a motion made against himself based on his return, and the question may be asked what is the difference between the return of the sheriff on an execution, and that of the tax officers, they all being, as to these matters, ministerial officers. One distinction is obvious, and it is a broad one. In the case of the return on the execution, the rights of the parties arise out of the facts as they actually occurred. In tax proceedings the title of the purchaser depends on a strict compliance with the statute. The acts must not only be done by the tax officers, but must be done in the mode prescribed, or the title of the owner is not divested, and the question in such cases is not so much whether the acts, have been done, as whether the evidence of them has been perpetuated in the mode prescribed by statute. 5 § 117. Evidences of Title of the Purchaser.-The purchaser is entitled to receive from the officer making the sale an instrument showing that he is the purchaser. Usually it is what is called a certificate of sale. This is a paper signed by the officer conducting the 1 Langdon v. Poor, 20 Vt. 13; Judevine v. Jackson, 18 Vt. 470. Blight v. Blanks, 6 Monr. 206; Blight v. Atwell, 7 Monr. 268. 3 Roberts v. Chan Tin Pen, 23 Cal. 259; see also Rayburn v. Kuhl, 10 Iowa, 92. sale, in his official capacity, giving a description of the land sold, the price paid, the name of the purchaser, and the date of the sale. The facts required to be stated in this certificate vary in different States, but they are substantially as stated. In New York the certificate is required to state these facts: 1. A particular description of the premises sold; 2. The price paid for each distinct lot or parcel ; 3. The whole consideration money paid; 4. The time when such sale will become absolute, and the purchaser will be entitled to a conveyance pursuant to law. Such certificate is presumptive evidence of the facts stated, but only of such as are required by the statute.1 In Virginia, the certificate or receipt shows the day of sale, the name of the person charged with taxes, the quantity of land assessed, the local description of the land, the amount of taxes due, amount of county levies due, the quantity of land sold, the name of the purchaser, and the amount of the purchase money. In Connecticut, and formerly in New York, a deed was executed at once, subject to defeasance by redemption within a certain period, or the failure to give a redemption notice.3 What estate does the purchaser at a tax sale acquire under his certificate of sale, or conditional deed? The correct view would seem to be that before the period of redemption expires he has no estate in the land, legal or equitable-that he has only a lien on the land for the purchase money, interest and expenses. The Michigan case cited arose under a statute requiring the surplus in excess of taxes and costs, at a tax sale, to be deposited with the treasurer of the State, "to the credit of the proper owner or claimant of the land." The purchaser was entitled to a deed at the end of two years from the sale, which "vested an absolute estate in fee simple." A tract of land was sold for non-payment of taxes, October 5th, 1840, and a certificate was given to the purchaser which would entitle him to a deed on the 5th of October, 1812. The land was sold again for the non-payment of taxes in August, 1842, and purchased by a stranger. The amount in excess of taxes and costs was deposited with the treasurer, and this amount was claimed by the purchaser at the first sale, upon the ground that his certificate of sale constituted him "the owner of the land," but his claim was not recognized. It was said that he had only a lien for the tax paid and interest thereon, and had 1 Overing v. Foote, 43 N. Y. 290. * Code of 1873, ch. 38, § 11, p. 382. 3 Comstock v. Beardsley, 15 Wend. 348; Ives v. Lynn, 7 Conn. 505. 4 Stephens v. Holmes, 26 Ark. 48; Brackett v. Gilmore, 15 Minn. 245; People v. Hammond, 1 Douglass (Mich.) 176. no right to interfere with the possession of the owner, to enter upon the land for any purpose, nor to control the rents and profits.1 In Kansas, under a statute allowing occupants of lands under any sale of land for taxes authorized by the laws of the State, to recover for improvements on such lands, when made bona fide, the courts. hold that the tax certificate vests such a title as allows the occupant under it to recover for improvements. But this does not conflict with the doctrine above stated, for under such a statute any occupant in good faith is entitled to claim for improvements, by virtue of the statute, and not by force of the title arising from the certificate of sale. Can the owner, during the period before redemption, commit waste? The rights of the owner during such period would seem to be very similar to those of a mortgagor, and the rights of the purchaser similar to those of the mortgagee. The mortgagor cannot endanger or diminish the security of the mortgagee. So the owner of the land should be allowed to do no act to diminish the security of the purchaser for his purchase money and interest, which we have seen are a lien on the land. The lien is often given expressly by statute, and the interest allowed is often very large, ranging from ten per cent. even as high as thirty-seven per cent. per annum. When the period of redemption expires, the purchaser then stands on a different footing. Although his title may be even then only an equitable one, he is entitled to call in the legal title. This right to a deed is then a vested one, and the estate so far savors of realty as to descend to his heirs. The legislature cannot, by an act repealing the act giving authority to the officer of sale to execute a deed, divest the right which has vested by the expiration of the period of redemption. Nor can the legislature extend the period of redemption so as to affect the rights of purchasers prior to the act. The rights of the purchaser attach as soon as his bid is accepted and the purchase money paid; his rights are determined by the statute in force at that time; his contract is made under and grows out of that statute, and the obligation of that contract cannot be impaired by subsequent legislation. The holder of a certificate, when the period of redemption expires, can compel the execution of the deed by the proper officer, if it is refused, by mandamus, and if he has a deed which is Mayo. Woods, 31 Cal. 269; s. P. the purchaser would not be entitled to rents and profits during period allowed for redemption. 2 Stebbins v. Guthrie, 4 Kansas, 353; citing Davis v. Powell, 13 Ohio, 320. 3 Rice v. White, 9 Ohio, 216; Bruce . Schuyler, 2 Gilman, 274, 278. 4 Dikeman v. Dikeman, 11 Paige Ch'y, 484. defective in form, but has a valid certificate, mandamus lies to compel the execution of a deed in proper form.1 The fact that minors and other persons under disability have an additional period in which to redeem, after their disabilities are removed, does not affect the right of the purchaser to a deed, and when the period of redemption fixed by statute has expired, he is then entitled to his deed. The person who is to execute the deed has no right to refuse to execute the deed on account of mere informalities. Where, by statute, the clerk is allowed to make an assignment of the certificate for the purchaser, and is directed to make the deed to the assignee of the certificate, he cannot object that there is no proof of the assignment, except the indorsement of the name and official title of the person who was clerk at the time of the alleged assignment, nor that the certificate omits the words "according to the facts." Where the statute allows a duplicate certificate to issue under certain circumstances, and it is issued, and subsequently to its issue the original certificate is assigned to a person who has no notice of the issue of the duplicate, and he procures a deed, his title is good against the holder of the duplicate certificate. The latter, where the original exists, is a nullity at law, and the holder of the deed under the assignment of the original certificate has the superior equity. Deed.-The term itself imports that it must be in writing, sealed and delivered. The sealing must be in the mode prescribed by statute as to deeds conveying a freehold interest in lands, unless a special mode is prescribed as to tax deeds. Where the statute is silent as to the mode of sealing, and county commissioners are the persons authorized to execute the tax deed, it is said that they should use their own private seals, and not the seal of the county which they represent. The reason given is that the county commissioners are not a corporation authorized to use a common seal. But a deed so executed, though invalid, may be used as evidence, and as a basis of the defense of adverse possession for a period sufficient to give title under the statute of limitations. In Wisconsin, by statute, the deed executed by the clerk of the board of supervisors is to have attached the seal of the county or town, and not that of the officer." The deed must be delivered to the grantee, and does not take ef 1 Maxcy v. Clabaugh, 1 Gilman, 26; State v. Winn, 19 Wis. 304. 2 Wright v. Wing, 18 Wis. 45. 4 Griswold v. Wilson, 36 Iowa, 156. 3 White v. Strahl, 17 Wis. 146. • Watts v. Gilmore, 2 Yeates, 330; Huston v. Foster, 1 Watts, 428. 6 McCoy v. Dickenson College, 5 Serg. & Rawle, 254. fect until that time. In this respect it differs from a patent for lands issued by the government, which takes effect as soon as issued.1 The date of the deed is immaterial, as it is the delivery that completes the execution of the instrument. The date may be shown by evidence aliunde, and it will be presumed when it is blank that it was before an act of the legislature, which it was claimed took from the officer the power to execute it. If the statute prescribes a form for the deed, that form must be followed substantially. In Wisconsin the form of the deed was as follows: "Whereas - [or assignee of —], has deposited in the office of the clerk of the county board of super- · visors of the county of, in the State of Wisconsin, a certificate of [here name the officer making the deed], whereby it appears, as the fact is, that the following described piece or parcel of land was," &c. The phrase, as the fact is, is regarded by the courts of that State as a matter of substance, and a deed omitting is void. It is an affirmation or declaration by the officer executing the deed, that the facts recited in the deed are true. But it is not necessary that the deed should be in the exact words of the form; if it is substantially in the form, slight irregularities on the face of it will not avoid it.5 Where the form of the deed was "in the name of the people of the State," this expression. was omitted, but the deed was by the comptroller, and recited the statutes under which he acted, and all the steps taken to authorize the sale under the statute, and there was proof that this form had been used in the State for twenty-five years. It was held that it being evident from the deed that it was the intention to convey on behalf of the people of the State, and not as an individual, and the form having been used for a long period, the error was regarded as one of form, and the court refused to set aside the deed, but declared its readiness to compel the execution of a new deed in the form required by statute. If the form prescribed by statute contains a recital of the year for which the taxes are due, a misrecital of the year avoids the deed,' but such misrecital does not affect the deed when the recital of the year is not required by the statute.8 If no form of deed is prescribed by the statute, then the power of 1 Hulick v. Scovil, 4 Gilman, 159; Church v. Gilman, 15 Wend. 658; and see Witherspoon v. Duncan, 4 Wall. 218. 2 Young v. Schuyler, 2 Gilman, 271. 'Atkins v. Hinman, 20 Wend. 249; Boardman v. Bourne, 20 Iowa, 134. ♦ Cutler v. Hurlbut, 29 Wis. 152; affi'g Wakely v. Mohr, 18 Wis. 321; Lain v. Cook, 15 Wis. 446. 5 Bowman v. Cockrill, 6 Kansas, 311. Bank of Utica v. Mersereau, 3 Barb. Ch'y, 528. 7 Maxcy v. Clabaugh, 1 Gilman, 26. 83 Barb. Ch'y, 528. |