is that when it is the duty of the party to pay the taxes, he cannot acquire a title founded on his own default.1

The agent of the owner, whose duty it is to pay the taxes for the owner, cannot purchase, and defeat the owner's title. So the agent to purchase at the sale cannot take a deed in his own name, nor hold lands bought with the principal's money. Where, by statute, a county is allowed to purchase at tax sales, a deed to the county and another is void, for the authority must be strictly pursued.5 A counsel or attorney employed and consulted as such, to draw a deed or an application for an original title for land, is in the line of his profession, and is precluded from buying in for his own use an outstanding tax title, or any outstanding title. The actual intention is not material; the rule is one of policy founded on the relation of confidence.

§ 124. Payment before the Sale.-The authority to sell land for taxes is founded upon the delinquency in the payment of the tax, and although the deed has been made, and the proceedings are regular on their face, they may be attacked by showing that the tax has been paid, that there was no delinquency, and in those States where the deed is made conclusive evidence of title, this is usually excepted.

The payment is to be made to the officer authorized by law to receive payment of taxes, and when payment is made to the collector before the assessment of the land, it does not prevent the subsequent collector, after the assessment of the land, from collecting the tax. The first transaction was not official, and there was no authority in the officer to receive the taxes. So payment to a collector whose duty it is to pay to the treasurer, is not good when the treasurer is the person authorized to receive the taxes. When the payment is to the proper officer, his misapplication of the money paid does not affect the owner, and a sale of the land would be void. 10

The payment must be in money," and be before the sale, but it may be at any time before the sale, "even after the hammer of the auctioneer is uplifted, and until an actual bona fide bid is made.” 12

1 Fiske v. Burnett, 30 Wis. 102, seems to hold that a mortgagee cannot buy in any

event.

2 Oldham v. Jones, 5 B. Monr. 458; Huzzard v. Trego, 35 l'enn. St. 9; Coxe v. Walcott, 27 Penn. St. 154.

3 Matthews v. Light, 32 Maine, 305.

5 Sprague v. Coenen, 30 Wis. 209.

4 Barton v. Moss, 32 Ill. 50.

* Smith v. Brotherline, 62 Penn. St. 461.

7 Curry v. Heriman, 11 Ill. 420; Dougherty v. Dickey, 4 Watts & Serg. 146; McReady v. Sexton, 29 Iowa, 356; Little v. Herndon, 10 Wall. 26.

8 Cossart v. Spence, 23 Ark. 374.

Young v. King, 3 R. I. 196.

10 Laird v. Hester, 24 Penn. St. 452; 4 Watts & Serg. 146.

11 Sawyer v. Springfield, 40 Vt. 305; Richards v. Stogsdale, 22 Ind. 74.

12 Collins v. Barclay, 7 Penn. St. 67; Early v. Doe, 16 How. 618.

The payment may be established by the same evidence as any other payment; it is an act in pais, and record evidence is not essential.1 The mark Pd. on the books of the treasurer, opposite taxes on a particular tract, is not evidence that the tax was paid before the sale, and does not discharge the tax, unless followed by actual payment, nor is it evidence that it was paid by the party in whose name the land is listed. The only effect of such evidence is by way of estoppel in favor of those actually misled by the books, or who have acted on the faith of what they contained, who could claim in equity to be prejudiced thereby, having advanced their money or otherwise acted on the faith of the payment.1

5

The owner has the right to pay the tax on his land, although it is not assessed in his name. A cotenant, where his undivided part has been listed separately, has the right to pay and prevent the sale of the whole tract, and so a junior patentee has the right to pay on the interlock, and a sale of the whole tract of the senior patentee is void as to the part within the interlock, the tax on which has been paid by the junior patentee. The payment must be of the same tax for which it was sold. Where land was sold, and bought by the county commissioners for the tax and costs, and after this the parties having different interests in it, had them assessed and paid the taxes, this did not affect the title obtained from the county, though it might entitle them to a return of their money, as the county allowed its land to be assessed to them.8

The payment by mistake on one lot, when it was intended to be paid on another, does not prevent the sale of the latter, nor does the belief of the party that he was paying on the lot sold entitle him to relief in equity if it was actually paid on another. So, if a person pays the tax on a tract not owned by him or assessed to him, such payment does not prevent the sale of that which he owns.10 The payment may be by the owner, or any one authorized to act for him, or whose action is ratified or adopted subsequently," but payment by a

1 Dennett v. Crocker, 8 Greenleaf, 239; Daniels v. Burso, 40 Ill. 307; Hammond v. Hanin, 21 Mich. 374; Cook v. Norton, 61 Ill. 285; Deen v. Wills, 21 Texas, 642.

2 Amber v. Clayton, 23 Iowa, 173.

4 23 Iowa, 173.

3 Irwin v. Miller, 23 Ill. 401.

5 Kinsworthy v. Austin, 23 Ark. 375.

6 Jones v. Gibson, 2 Taylor (N. C.) 41; People ex rel. Presburg v. McEwen, 23 Cal. 54. By statute the owner of an undivided part has the right to pay the taxes on his part separately, though assessed jointly.

Hunter v. Cochran, 3 Penn. St. 105.

9 Moss v. Mayo, 23 Cal. 421.

Russell v. Werntz, 24 Penn. St. 337.

10 Stephens v. Wells, 6 Watts, 325.

11 Bennett v. Hunter, 9 Wall. 326; Tacey v. Irwin, 18 Wall. 549.

stranger, without request, gives the party paying neither title to the land, nor a right of action for the money paid.1

Where the statute provides for a suit against the land to enforce the payment of the taxes, and there is judgment and a decree of sale, or provides for proceedings to quiet the title, and there is a decree in such proceedings, the decrees in such cases cannot be attacked collaterally by showing payment of the tax,3 and even in a proceeding to set aside a foreclosure of the tax title, in absence of fraudulent collusion, the fact that the treasurer told the owner of the land that no tax was assessed on the land, cannot avail him. If land is assessed for several years and sold for the whole tax due during those years, the payment of the tax for one of those years avoids the sale."

6

§ 125. Redemption from Sale.-A certain period is allowed the owner after the sale, in which he may redeem, on payment of the tax, costs and interest thereon. The rate of interest is generally high. "Any right which in law or equity amounts to an ownership in the land, or any right of entry upon it, to its possession or enjoyment, or any part of it, which can be deemed an estate in it, makes the person the owner so far as it is necessary to give him the right to redeem." The trustee apparently clothed with the legal title, and acting with the consent of the cestui que trust, though the appointment be in fact invalid, may redeem as a person having charge of the estate. An administrator may redeem the land of his intestate; a judgment creditor having a lien may redeem the debtor's land; the heir of the mortgagee may redeem the land mortgaged; 10 a person holding land under a bond conditioned for a deed in a limited period; a married woman may redeem the homestead after the death of husband; 13 a person having the power of attorney to sell the land,13 the agent of minors,14 or the person who has bought the interest of his debtor in land at a sheriff's sale,15 may redeem the land;

11

12

1 Homestead v. Valley R. R. Co. 17 Wall. 153.

? Cadmus v. Jackson, 52 Penn. St. 295.

3 Gaylord v. Scarff, 6 Clarke (Iowa), 179; Wallace v. Brown, 22 Ark. 118.

McGahen v. Carr, 6 Clarke (Iowa), 331.

5 Kinsworthy v. Mitchell, 21 Ark, 145.

Corbett v. Nutt, 10 Wall. 464; s. c. 18 Gratt. 624.

8 Bowen v. Williams, 34 Miss. 324.

9

8

Dubois v. Hepburn, 10 Peters, 1.

"Schenck v. Peay, 1 Dill. 627.

10 Burton v. Hintrager, 18 Iowa, 348, assignee of mortgagee; Faxon v. Wallace, 98 Mass. 44.

11 Roger v. Rutter, 11 Gray, 410.

12 Adams v. Blake, 19 Iowa, 61; Plumb v. Robinson, 13 Ohio, N. S. 298.

13 McCord v. Bergantz, 7 Watts, 487.

14 Chapin v. Curtenius, 15 Ill. 427.

15 Shearer v. Woodburn, 10 Penn. St. 511.

any one having the estate, or authorized by the owner, or any one whose duty it is to pay the taxes from the relation he sustains to the owner may redeem. A person having no interest cannot redeem,1 and a mere stranger has no right to redeem without the consent of the owner; yet it seems, if the payment is accepted and the land redeemed, it inures to the benefit of the owner, and should the stranger thus paying obtain an assignment of the title of the purchaser which he conveys to a third person, it is not good against the owner; the transaction is a redemption and passes no title."

5

Where a tract has been improperly assessed in gross to the several owners, and sold as such, one of the owners may redeem his part by paying his pro rata share, without reference to whether the redeemed part was taxed at more or less than its true relative value, and if seated and unseated are sold together, the owner may redeem the unseated without paying the taxes on the seated. A cotenant may redeem the whole tract. He has such an interest as entitles him both to pay and redeem, but he must redeem the whole. By statute in Iowa, the redemption extends only to the interest of the party redeeming. And so in California, though the interests of cotenants may be assessed jointly, the owner of an undivided portion may pay on his part and release it, but if there is judgment against the land, and sale, he must pay the whole tax, and the effect is only to redeem his own part. Redemption is a creature of statute, and that must be followed. Although a cotenant cannot redeem so as to obtain the title for himself alone, yet when the land has been sold and the period of redemption expired, there is nothing in the relation which he sustains to his cotenants, to prevent his purchasing for himself from the holder of the tax title."

8

Time of Redemption.-The period in which the owner may redeem is fixed by statute. It is usually a fixed period from the day of sale, but sometimes from the time when the owner first had notice of sale. When there is a limitation of the redemption to five years from the sale, and afterward to two years from time of actual notice, the latter is construed as cumulative merely. In other States

1 Penn v. Clemens, 19 Iowa, 372.

2 Levick v. Brotherline, 74 Penn. St. 149; Coxe v. Sartwell, 21 Penn. St. 480; Orr v. Cunningham, 4 Watts & Serg. 294.

Penn v. Clemens, 19 Iowa, 372.

5 Jacobs v. Porter, 34 Iowa, 341.

4 Dietrick v. Mason, 57 Penn. St. 40.

6 Quinn v. Kenney, 47 Cal. 147; People ex rel. Presburg v. McEwen, 23 Cal. 54. Keele v. Cunningham, 2 Heisk. (Tenn.) 288.

* McCalmet v. Rockland & Venango Coal & Oil Co. 72 Penn. St. 221.

Gladwin v. French, 112 Mass. 186.

it is for a fixed period, and until the recordation of the tax deed, and in Wisconsin a deed is not considered recorded unless it is also entered in the index in the mode prescribed by statute. So in Iowa, when by statute the purchaser has only a lien for the money advanced and interest, until the deed is executed which divests title of the owner, redemption within the three years limited divests the lien of the purchaser. But although the title does not vest until the deed is recorded, if the purchaser enters at the end of the three years from sale, the period fixed for redemption, and before the deed is recorded, and takes the profits before he is authorized to do so, the rents and profits thus received will not make an equitable redemption, and the privilege of redemption is lost at the end of the three years. The owner could not redeem directly, and he cannot indirectly.3

After the period of redemption has expired, there may be a permissive redemption by the consent of the purchaser, who may waive his rights. If a treasurer issues a certificate of redemption after the expiration of the period, the acceptance by the purchaser of the redemption money ratifies the issue of the certificate. If the waiver by the purchaser is conditional, the conditions must be strictly performed to entitle the owner to the benefit of it. The receipt of the redemption money does not always estop the party receiving it from asserting his rights under the tax sale. Where two persons each claimed title to a tract of land, and one of them bought a tax title, the other redeemed by paying the money to the treasurer. The receipt of this money did not estop the first party from denying the title of the party redeeming, as each knew of the claims of the other, but if the party redeeming had been induced to change his condition, or had acted on the faith of the redemption, the holder of the tax title would have been estopped.'

8

The amount to be paid in order to redeem is fixed by statute, and includes the tax and costs, and interest thereon at various rates, from six per cent. to one hundred per cent. The payment is to be made to the officer designated by the statute, and if none be designated, it may be made to the owner. The tender of payment must be absolute

'International Ins. Co. v. Scales, 27 Wis. 640.

Lake v. Gray, 35 Iowa, 44.

4 Cox v. Wolcott, 3 Casey, 154.

McCulloch v. Dodge, 6 R. I. 346.

3 Shengen v. Ferry, 37 Iowa, 242.

5 Byington v. Hampton, 13 Iowa, 23. Terrill v. Grimmett, 20 Iowa, 393.

* Stewart v. Brooks, 28 Mo. 62; Comstock v. Cover, 35 Ill. 470; Farnum v. Booker, 4 Kansas, 114; Milligan v. Hintrager, 18 Iowa, 171; Converse v. Jennings, 13 Gray, 77; Craig v. Flanagin, 21 Ark. 319.