#### Charles King *vs.*The District of Columbia and Harvey Spaulding.

Equity. 5,569.

Decided March 3d, 1879

1. Section 175. B. S. D. C., requiring the collector to report all tax sales to the recorder of deeds, is not superseded by the act of the legislative assembly of August 23, 1871.

2. The District of Columbia is estopped from enforcing a tax sale where there has been a failure to report such sale to the recorder of deeds, as against one who subsequently purchased the land for the full value thereof and without any notice of the sale.

3. The mere filing of such report in the office of the comptroller is not constructive notice to a *bona fide*purchaser.

STATEMENT OE THE CASE.

The bill shows the following facts :

The complainant purchased a house and lot in the District at a public sale made by a trustee in a deed of trust, October 23, 1875. He was to receive a conveyance free of all liens. Examination was made of the records, and as to taxes due thereon, and oh being informed by the collector of taxes that the property had been stricken off to the District at a sale made June 29, 1875, for the taxes of 1874 and 1875, that the amount required to redeem from such sale w'ould be $319.87, and that this was all the claim for taxes due thereon, and this sum, together with other incumbrances upon said property being paid and satisfied, the complainant paid the whole purchase-money, $3,525, and took a conveyance from the trustee as aforesaid, October 23, 1875, and immediately took possession. He had no notice of any claim by any one against such title, until .April 27, 1877, when he received a notice from the defendant, Spaulding, that he had a certificate of sale of said property, made September 9, 1875, in pursuance of the act of the legislature of the District, of June 25, 1873, he having been the holder of a tax lien certificate, under said act, for the taxes in arrears of 1872 and 1873, and having demanded sale for the enforcement thereof, sale'had been made, at which he w'as the successful bidder at *37the sum of $109.45, the tax lien being surrendered and can-celled.

Said Spaulding also notified the complainant that he proposed to ask a deed from the Commissioners unless he could be reimbursed such sum with interest. The bill alleges this tax sale to Spaulding to be void, and prays for an injunction against such deed being made to him.

To this bill a demurrer is interposed by the Commissioners, and an answer denying the allegation in the bill, that no taxes were due for the years 1872 and 1873, and saying that no taxes for those years had been paid except by Spaulding as alleged in the bill. The answer of Spaulding puts the complainant to proof of the facts as alleged, admits the sale as set forth, and his design to procure such deed unless paid the said sum of $109.45 and interest, which he says is his only claim upon the property.

The proofs sustain the allegations of the bill substantially as to the non-payment of the taxes for 1872 and 1873, and there appears to be no dispute about the other facts stated in the bill.

The cause was ordered to bq heard at the General Term in the first instance.

W. Willoughby for complainant:

The sale relied upon by the defendant is void by reason of non-compliance with the requirements of sec. 175, R. S. D. C. This sale is the only basis of the claim of Spaulding, the tax lien certificate having been surrendered and cancelled. The District of Columbia has no interest whatever in the suit. The failure to report and record as required by section 175 above referred to, was the direct cause of the complainant’s investing his money, for the records were examined, and certainly as to him, a *bona fide*purchaser, such failure made the sale void. Blackwell on Tax Title, p. 304 and cases cited; 13 Vt., 609, 18 Vt., 470, 25 Vt., 481, 26 Maine, 228, 28 Miss., 70. The defendants say that the requirements of the law have been met., because report of the sale was made to the comptroller and recorded in his office according *38to the legislative act of August 23, 1871. But this, in the first place, is not shown to be true as a matter of fact in this cause. But if it were true, it would not dispense with the requirements of sec. 175, R. S. D. C. The report is made to the comptroller for one purpose, that to the recorder of deeds for another. But both are required. There is no pre-' tense that by the act of 1871, the requirements of sec. 175 are dispensed with. A statute does not repeal a former statute unless both are inconsistent. Repeals by implication are not favored, and in order to make out a repeal by implication there must be an entire incompatibility and repugnancy between the two statutes. 16 Peters, 362; 1 How., 197; 17 How., 84; 22 How., 299; 11 Wall., 652; Murdock *vs.*Memphis, 20 Wall. There is then no ground for requiring King to make a tender of the amount, upon the principle that he who seeks equity must do equity. There is no equitable claim against him, especially in view of the fact that he is entirely innocent, while Spaulding has been guilty of neglect in not paying the taxes of 1874 and 1875, by reason of which he suffered a forfeiture from which he himself has never been relieved by a redemption, and could have no pretense of such relief except through the act of King himself, who did pay $319.87 to redeem the land from the sale of June 29, but not for the benefit of Spaulding. This case can be decided without necessarily deciding all sales not made according to the requirements of sec. 175, R. S. D. C., to be void. This case is somewhat peculiar. The complainant made payment *in*full, relying upon the fact that the records did not show' any claim against the property. In other words, such payment was the *direct result*of the failure to report and record as the law required.

Francis Miller for defendant:

All the points involved in this case were decided by this court at the last term in the cases of Elliot, trustee, and Hibbs, advérsely to the complainant, except the point raised in the 9th paragraph of the bill, which reads as follows :

“ The complainant further says that no report of sale of *39said property was made by the collector of taxes or other person to the recorder of deeds, nor was such report filed in the office of the said recorder of deeds, as required by section 175, R. S. D. C.”

For this reason it is argued that the sale is invalid.

But by the act of the legislative assembly of the District of Columbia of August 23, 1871, this report of sales is to be made to the comptroller, and by the fourth section of the act of Congress of June 20, 1874, it is provided that “ all the provisions of the above-named act, as to the sale of property and collection of taxes in arrears, are hereby made applicable to the taxes hereby imposed and in arrears as aforesaid.” 18 Stat. at L., 118; see, also, sundry civil act of March 3, 1875, 18 Stat., 419. The taxes for which the property named in the bill was sold were those levied for the years 1872 and 1873, and were covered by this provision. The report was made to the comptroller, and is recorded in his office, and, therefore, all the requirements of the law have been met.

Mr. Justice Mac Arthur

delivered the opinion of the court:

In this case the bill is filed for the purpose of enjoining the District of Columbia perpetually from enforcing the collection of a tax on a lot of land which is described in the complaint.

It appears from the bill that the complainant purchased this property at a trustee’s sale under an advertisement for that purpose, upon an agreement that all taxes in arrears should be paid in full, and that he should take the property free and clear of all tax liens. That the complainant instructed his counsel to examine the title, who went to the collector of taxes and was informed by that officer that the taxes of 1874 and 1875 were the only taxes in arrears. These taxes were paid out of the purchase-money, and he then took a conveyance from the trustees and entered into possession of the property in October, 1875. That the complainant made the purchase upon the strength of the information *40which his counsel had acquired from the collector of taxes, and that he would not have purchased without deducting all unpaid taxes.

In 1877 he received a notice from Mr. Spaulding, the defendant, that he held a tax-title to his property for the taxes of 1872 and 1873.

It appears that Spaulding got a tax certificate from the Commissioners, in virtue of powrers which they conceived themselves to be clothed with under the act of the legislative assembly of August, 1871, and that the taxes of 1872 and 1873 not having been paid, he made application to the collector to make the sale provided for in that act, which was done, and that gave him a certificate of sale, which entitled him at the expiration of a year to a conveyance. He took this conveyance and served this notice upon King that he held this tax-title, and called upon him to redeem the land. Then King filed his bill setting up all these facts, and praying that an iujunction be issued.

We do not intend to dispose of all thé points that were discussed at the bar in this case, but only to allude to such points, as all the judges who heard the case are agreed upon ; my brothers Wylie and Hagner reserving their views upon the points not decided.

The Revised Statutes for the District of Columbia, section 175, contain a provision requiring the collector of taxes, when he makes a tax sale, to report it to the recorder of deeds of the District of Columbia, and by him it is to be recorded among the land records. That was not done in the present ease, and it is said therefore, that the District of Columbia are estopped by their own negligence and fault in not complying with that law. That provision is in the revision, but it has been in existence, ever since 1819.

The complainant says he is not bound by the sale to defendant, as the District was required to enter upon record this evidence of his title. The District reply that the act of the legislative assembly of August, 1871, already referred to, requires the collector to report the sale to the comptroller, and .the report is to be filed in the office of the comptroller, *41and that this supersedes the act of Congress requiring the report to be made and recorded in the recorder’s office.

An inspection of the act of 1871, passed by the legislative assembly, discloses the fact beyond all doubt that the comptroller was designed to be simply the financial officer of the government of the District, and for this purpose the collector is required to report and pay over to the treasurer, daily, all receipts for taxes, taking from the treasurer duplicate receipts, one of which he retains in his own. office, and the other he is to transmit to the comptroller. All sales of property for taxes, all assessments for taxes, and all appropriations and expenditures of money are to be filed in the comptroller’s office, so that it appears to be the financial centre of the government. The object of all this was that the comptroller might be a check upon and call all other officers to accountability. But we.can see that the legislative assembly never intended by these requirements to make the comptroller’s office a record of laud titles, which should be not only actual but constructive notice to the world.

We are of opinion that the act of the legislative assembly did not supersede the act of Congress upon this point. The object of requiring this report to be made to the recorder, and requiring a record thereof to be made among the land titles of the District, is very obvious. It was to give the world notice of sales of lands for unpaid taxes.

We may concede that the District is not estopped by any declaration or representation made by the collector in regard to unpaid taxes. There is no law compelling him, or making it his duty to give information upon this point. Where, then, are parties to get the necessary information in regard to sales of property for delinquent taxes. There is no officer to whom they can resort for that purpose ; and hence the wisdom of this provision in the Kevised Statutes requiring the District authorities to make record of these sales wheré all other conveyances are recorded. We, therefore, come to the conclusion that the District is estopped by its own fault.

Now, Mr. King states, and there is no doubt of the fact, that he purchased this property and paid its full value with*42out any deduction for the taxes of 1872 and 1873. Hehad no actual notice of the tax sale, and no record having been made, he had no constructive notice. He, therefore, occupies the position of a purchaser without any notice ; and he is in that position because the District has failed to make the record required by the statute.

It is said he ought to make a tender of the tax which i9 absolutely due.

In the first place, he has paid the full value of the property, so that on the mere ground of equity the District cannot call upon him to pay it over again. And the effect of requiring a tender in such a case as this would destroy not only his equity, but his remedy. He does not deny the tax, hut it was not due from him, and never was due from him. It is not a case where the owner of the property files a bill to set aside a tax because it is illegal, and where he ought to pay what is due before he can ask for any relief from paying w7hat is not justly due. This is the case of a purchaser who stands without any privity to this tax, except that he has paid in full for the land itself.

So far as King is concerned, the District is estopped, and we think he is entitled to pursue this remedy without making any tender in the first place. There must be, as to the plaintiff', a perpetual injunction against the collection of the tax upon this property for the years 1872 and 1873.