the officer to convey being a naked power, it must show the authority for the conveyance, just as a deed executed under a power of attorney must show on its face the authority under which it is executed. Where the statute requires an order of court for the sale of land for taxes, and that it should be at a specified time, a failure to recite that the sale was made in pursuance of an order of the court is a fatal defect in the deed; or where the statute requires the land to be sold, "if taxes are not paid in fourteen days after demand," &c., and requires the deed to recite the cause of the sale, a failure to recite that "the taxes were not paid in fourteen days after demand," &c., makes the deed void. If the statute requires the sale to be on the first Monday in November, and the deed recites the sale as on the first day of November, such defect does not avoid the deed. Where the deed sets out all the proceedings had in such levy, and all other proceedings essential to its validity, but omits one of the requisites to a valid levy of the tax, it is evidence by implication that the omitted requirement was not complied with, and if by statute such deed is made prima facie evidence of title, such omission, while it does not avoid the deed, shifts the burden of proof to the purchaser or party claiming under the tax deed, and requires him to show affirmatively that the omitted requirement was complied with. The recitals of facts must be that such facts exist. It is not sufficient to recite that such facts appear from the records of the auditor's office. Where a form is prescribed by statute, and the deed follows the form, it is good, although it does not show on its face that it is executed under a special statutory power.

The execution of the deed may be proved as at common law, and acknowledgment by the officer executing it is not essential to its validity; when required by statute to be acknowledged, it dispenses with the common-law proof of execution, and the deed is good without witnesses.8

Is it necessary that the deed should be recorded, as against purchasers from the owner? The courts of Massachusetts and Vermont hold that it is, while in Illinois the opposite view is taken.10 In Ver

'McDermott v. Scully, 27 Ark. 226.

* Harrington v. Worcester, 6 Allen, 576.

3 Scott v. Pleasants, 21 Ark. 370; s. P. February for January, Hurlburt v. Dyer, 36 Iowa, 474.

4 Long v. Burnett, 13 Iowa, 29.

5 White v. Flynn, 23 Ind. 46; Gavin v. Schuman, 23 Ind. 32.

6 Falkner v. Dorman, 7 Wis. 388.

7

Hogins v. Brashears, 13 Ark. (8 Eng.) 242; Dalton v. Fenn, 40 Mo. 109.

Stebbins. Guthrie, 4 Kans. 53.

Tilson v. Thompson, 10 Pick. 359; Allen v. Everts, 3 Vt. 10.

10 Graves v. Bruen, 1 Gilman, 167.

mont the recordation is required by the statute, which of course must be followed, but where it is not required by special statute, and the general registry acts are not sufficient to embrace tax deeds, it is difficult to perceive upon what principle recordation is necessary. At common law a deed for land is good without recordation, and the registry acts intended to give notice to purchasers are matters purely of statutory enactment, and comparatively of recent date.

When is the deed to be executed? Except where the statute provides for it at an earlier period, it is not to be executed until the period of redemption has expired, and the owner has failed to redeem. Where the statute gave the owner one year to redeem, a sale was made on the fourth of May, 1865, and the deed was executed on the fourth of May, 1866, but the deed was declared invalid, on the ground that the owner had the whole of the fourth day of May, 1866, in which he might redeem.1 So if the period of redemption be two years, and the purchaser at the tax sale, allows it to be sold again for non-payment of taxes within the two years, the time for making the deed is postponed until two years after the second sale.2

Is the power to execute the deed a continuing one? It is unless limited by statute. Where a sale was made on the tenth of January, 1833, and the deed executed on the second of January, 1840, it was sustained; and when the sale was made March 3d, 1834, and the deed was executed March eighth, 1838, but this deed misrecited the year for which the taxes were due and for which the land was sold, and a new deed reciting the facts and correcting the error was made on the tenth of November, 1841, the new deed was sustained.*

In Iowa the courts hold expressly that the power to make the deed is a continuing one, and if the first deed is defective the officer will be compelled by mandamus to execute a correct deed, but under the limitations that "if there have been such acts or omissions as under the statute would defeat the right of the purchaser to receive and the power of the treasurer to convey the legal title, then of course neither the first nor the second and corrected deed can be legally and properly made. For in every instance the power of the treasurer to make a deed depends upon the validity of the prior essential steps or proceedings, and his power to make a second and corrected deed must rest upon the fact of such validity, and that the corrections as made fairly and legitimately appear from the records themselves, or are properly deducible therefrom, and are not facts in pais merely, or resting alone

1 Aman v. Baker, 49 N. H. 161.
3 Graves v. Bruen, 1 Gilman, 167.

2 Denike v. Rourke, 3 Biss. 39.
Maxcy v. Clabaugh, 1 Gilman, 26.

in the memory of the treasurer; and certainly so when such facts. should regularly and legally be of record. In this case, where the statute required a record to be made of all sales for taxes, and the first deed showed a sale in gross of several parcels, a second and corrected deed was allowed, showing a sale by parcels, in accordance with the facts as shown by the records of sale.

Who is to execute the deed? The officer designated by the statute to sell, generally makes the deed. The question often arises, Can the deputy of the officer designated to make the deed, execute the deed as well as his principal? It is true as a general rule that the deputy of a ministerial officer can do any act that the principal can do, and where the county clerk is directed by statute to convey in the name of the county, and he has power by statute to appoint a deputy, and there is no limit placed upon his powers, a tax deed executed by the deputy in the name of the county is valid.2 In Virginia, when the sheriff was the officer who sold and conveyed, while the general doctrine was admitted, it was considered subject to the modification, that if the sale was made by the deputy, the deed was required to be made by him, and not by the principal. And so if the sheriff sells, his deputy cannot execute the deed; he who sells must convey. But where a deed on its face purports to be and is that of the sheriff, although the account of sales of the land may show that the sale was by the deputy, it will be sustained. And the case was thus distinguished from Wilson v. Bell, the principle of which, that he who sells must convey, was sustained. When the sale and deed are by the deputy, the person claiming under the tax deed, must show that the person described as sheriff was such, and that the grantor was his deputy." The deputy must be the deputy of the person authorized to convey. Where the offices of tax collector and sheriff are distinct, although they may be vested in the same person, the under-sheriff cannot perform the duties of collector, and a deed by him would be void.'

If the term of office of the person authorized to execute the deed expire before it is executed, who is to execute the deed? One class of cases asserts that the person who made the sale may execute the deed, although he is no longer an officer, upon the principle that a sheriff who sells lands under execution may convey after his term of

1 McCready v. Sexton, 29 Iowa, 356. Rockbold v. Barnes, 3 Rand. 473.

2 Whitford v. Lynch, 10 Kansas, 180. 4 Wilson v. Bell, 7 Leigh, 22.

5 Unreported case of Kezee v. Leece, referred to in Flanagan v. Grimmett, 10 Gratt. 432.

office expires.1 But the better view is that the act to be done is an official act, and not a personal trust. When the term of office expires, the individual who held it ceases to be an officer, and his acts cease to be official acts. In tax proceedings the right of the purchaser to a deed depends on the record of the tax proceedings, and the successor of the person who sold, or who would have been entitled to convey, can ascertain the propriety of executing the deed as well as his predecessor. The case in Virginia does not assert the principle that the successor cannot execute the deed. That was a case of the sale of lands which had been forfeited to the commonwealth for failure to list them and pay the taxes thereon. The act of 1837 directed the mode in which these lands should be sold by commissioners appointed by the Circuit Court of the county. It made it the duty of the court, when the purchase money had been paid, to direct the commissioner to make a deed, and no deed could be made without the order of the court. The act of 1838 authorized the purchaser to anticipate the payments on the land purchased, and "upon application to the said commissioner," he was directed to receive the purchase money, and under such circumstances he was empowered to convey without an order of the court. In construing the words "upon application to the said commissioner" in this act, the court decided that they meant the commissioner who made the sale, and that no other commissioner could convey without an order of the court.

§ 118. Who entitled to Deed—Delivery-Description of Land. The highest bidder at the sale, the purchaser, is entitled to the deed, and the officer is to make the deed to him. This interest, until the execution and delivery of the deed, is a right to the repayment of the purchase money with interest, a chose in action, which at common law is not assignable. If his interest is assigned, there is no authority to make the deed to the assignee, and a deed made to one substituted for the purchaser is void, the authority must be strictly pursued and the deed made to the purchaser alone. In many of the States the certificate of sale is made assignable by statute. In such cases the provisions of the statute must be followed, and if the officer designated by statute assign the certificate, without the authority required, the deed to the assignee is void. But the assignee is entitled to all the

Graves v. Hayden, 2 Litt. 64; Elkin y. The People, 3 Scam. 207.

2 Maxey v. Clabaugh, 1 Gilman, 26; Bestor v. Powell, 2 Gilman, 119; Donnell v. Bellas, 10 Casey (34 Penn, St.) 157.

3 Miller v. Williams, 15 Gratt. 213.

4 Keene v. Houghton, 19 Maine, 368; Walton v. Hale, 9 Gratt. 194.

Swope v. Saine, 1 Dill. 416; Eaton v. North, 32 Wis. 303.

privileges of the purchaser, and may require a new deed when the former deed is defective. The fact of assignment, when the statute does not prescribe the mode in which it shall be established, is to be proved as any other fact connected with the sale. The mere recital of the assignment in the deed is no evidence of it, unless the language of the statute making the deed prima facie evidence is sufficiently broad to include the fact of assignment. In cases of patents for public lands, when the statute recognizes the right of the assignee, but does not prescribe the mode of proof, when the patent issues, the assignment has performed its functions, and is no longer a title paper, and it is presumed that the officer, the surveyor, had sufficient evidence of the assignment before him upon which he acted. There is great similarity in the two cases of patents and tax deeds, as to the proof of assignment, but there is a marked distinction sufficient to require a different rule. In the case of patents, it is a matter of contract between the purchaser and the government; in the tax deed it is a proceeding to divest title, a species of forfeiture, every fact of which is to be established by proof, and nothing is to be left to presumption except by express provision of law. It would be strange indeed if the recitals of a tax deed should be evidence of the assignment in favor of the assignee, when they are not evidence for the purchaser himself."

The deed takes effect from its delivery, but to protect the purchaser, his assignee, or creditor, it may relate back to the expiration of the period of redemption. This fiction however is not to be used so as to injure strangers or third parties. This doctrine is well settled as to purchasers at sheriffs' sales. When the debtor has the privilege of redeeming in a specified period, the deed relates to the expiration of the period of redemption. This principle has been applied to a Spanish title, incomplete until confirmed by a board of commissioners, which was sold under execution by the laws of Missouri, before confirmation. The patent was issued to the debtor, but inured to the benefit of the purchaser, by the doctrine of relation. The rule has been applied to tax deeds. A tax sale occurred in 1841; in April, 1843, an invalid tax deed was executed; in August, 1843, the interest of the purchaser was sold under execution; in June, 1844, a valid deed was executed to the purchaser at the sheriff's sale, which related

Wiley v. Bean, 1 Gilman, 302, decides otherwise; but see Blackwell on Tax Titles, who demonstrates it to be erroneous.

2 Bouldin v. Massie, 7 Wheat. 122.

3 Post, § 119, n. 2, p. 332 and authorities.

Henderson v. Davenport, 20 Johns. 537; 11 Ohio, 235; Fell v. Price, 3 Gilman, 190. Landes v. Brant, 10 How. 372; Jackson v. Ramsay, 3 Cow. 75.