Peavy v. Wood

Campbell, C. J.,

delivered the opinion of the court.

There is nothing in the record to support a claim by either party, based on any statute of limitations or lapse of time, as provided for by §1709 of the code of 1871; and the only question is as to title conferred by the several grants mentioned in the pleadings, and 'who has it as between the parties to this suit.

In view of the allegation of the bill that the lands were all sold for taxes in 1875, and struck off to the state as purchaser, and that the sheriff and tax-collector made and certified a list of said lands as sold to the state, which list is in the record, and conforms to law, whereby the title of the lands was vested in the state, the only question to be decided is whether the allegation of the bill that the lands were redeemed, and the title of the state acquired by said sale and list was extinguished. If so, the title claimed by the complainant becomes a matter for consideration. If not, the title of the complainant fails, in any view of the sufficiency of the evidence to maintain his deraignment through successive conveyances set forth and relied on by him. As the bill avers the sale to the state for taxes on March 1, 1875, and claims a redemption of the lands from the state, the validity of its title, by virtue of that sale, is not open to controversy; but, in view of the argument of counsel on both sides as to this, we remark that if the state’s title depended ■on the certification of the list of lands sold to the state, and made and certified by the collector to the clerk, and by the clerk to the auditor, there is no valid objection to the list here involved, for the act of December 22, 1874 (Laws special session, p. 14), required the list of all lands sold for taxes to be returned by the tax-collector to the circuit clei’k, who, under then existing laws, was the officer charged with the disposal of lands after they were sold for taxes. He was the proper person to certify the list to the auditor, if it was to be so certified. The first Monday of March, 1875, was the proper time for a sale for taxes, as we assume, under act of January 26, 1875 (Laws, p. 124), and the list made by the tax-collector, and certified under his hand to be correct, and returned to the circuit clerk, showing the lands struck off to the state, must be held to have vested title in the state, and, if that title was not afterwards extinguished by redemption, as claimed by the bill, complaiuaut has no case.

There is a good deal to suggest the improbability of what is claimed to have been done looking to the alleged redemption of the land, but, accepting as true all that is testified to on this subject, it must be held to fall far short of a redemption. There is no such thing as an equitable redemption of land sold for taxes. It could occur only according to law. The act of 1876, 48, 49, p. 129 of the laws, prescribed the terms on which the state’s title could be acquired. The officers whose acts were to effect redemption were agents of the state only to execute the law, and could not bind the state except in conformity to law. And, if it be true, as Clark thinks, that he, as sheriff, sent the money to redeem the land to the auditor, that did not redeem it. The auditor had no authority to receive the money, and if he did receive it, that clid not bind the state. Tbe law mentioned contains specific provisions for extinguishing the state’s title, and only by conformity to them could the title of the state be acquired. The law is not shown to have been complied with, and the title, vested in the state by the sale for taxes, and the list returned by the collector, was in the state until it parted with it to him under whom defendants claim.

Reversed and bill dismissed.

Judge Woods, being disqualified, took no part in this decision.