Year: 1878

act of March 80. 1874, provides til al
"the levy, equalization, assessment
roll, publication and sale of delin-
quent taxes for the fiscal years 1878
and 1874 is hereby legalized and
confirmed, and shall have the same
force and effect as though it had
beon made as provided by law.n


1t will be observed that neither
of these statutes can have any ap-
plicatlon to the sale of February
"A, 1875, which was mado for the
collection Of the delinquent tax of
1856; which was valid tax
levied by the Legislature and
| needed no curative act. 1t will be
further observed that both of these
acts were passed after the sale of
March 10, 1874; and it is contended,
that even though the sale was void
when it was made, these acts had
the effect to validate it by relation.
The act Of March 2Sth does not even
attempt to 40 this in terms; but
only makes new levy for those
years and declares it shall have the
same force and effect as If it had
been made by statute passed aud
In forcs before the commencement
Of each of said fiscal years. The act
Of March 80 is more sweeping in
Its terms, aud attempts to validate,
not only the prior levy, equaliza-
tion, assessment roll aud publica-
ton, but also the "saIe OF deiin-
quent taxes' for those years, m can
ing, as we interpret it, the sale for
delinquent taxes. To give those
statutes the effect claimed for
them, would be to deprive the tax
payer OF his estate without due or
any process of law, by mere Leg
islative rsscrlpt, pronouncing to be
valid, sale which, under the law
OF the land, was absolutely void
when 1T was made. The day aftcrthe
sale, the title of the owner was as
valid at law and in equity and to all
fntents and purposes. as though no
sale had occurred; but on the the
ory Of the defendants, month
later, the Legislature declares the
sale shall be valid, and the owner
10 deprived Of his estate, by the
force of that declaration alone. We
are not aware that such a PROPOSE.
tion has been maintained by any
Court of last resort,


But 1t Is claimed that when
purchaser at a void tax sale, has
paid the taxes which were Justly
and equitably due from the owner,
II the latter goes into a curt OF
equity seeking a decree ajjudging
the sale to be void. the court, on
the general principles which gov.
ern courts of equity, will not grant
the relief, except on the condition,
that he refund the taxes paid by
the purchaser. The present is an
action founded on section 733 of the
Code Of Civil Procedure authoriz.
ing an action for determining an
adverse claim, anu it is not clear
that it is q proceeding in equity.
But without expressing an opinion
on that point, and couceding for
the purposes of the decision, that 1t
Is an action of that character,
the position of the defendants
Is not tensble. II the sale is
absolutely void, the payment of
the tax by the purchaser, stands on
tho footing of voluntary pay
ment, not made at the request of
the owner of the land, and which
he Is under no obligation to refund.
lf the tax sale was not void, but
only Irregular in some respects,
and il tho owner should go into
equity, to cancel the sale and TO
compel a purchaser in good faith to
surrender the evidences of his title,
it Is possible the court would not
grant relief, except on condition
that the purchase money was re-
funded. But that would b. very
different case from the present.
The case of Sands VS.. Lynham, 81
Graft. 29l, cited by defendants
counsel, has no application to the
proposition under discussion. We
deem it unnecessary to notice the
other points made by counsel.


Judgment and order denying
plaintiffs motion for Is new trial
reversed and cause remanded for O
new trial.


0oNoURRING OPINION.


l concur in the Judgment. The
court below erred in overruling the
objection to the admission of the
tax Judgment without the produc-
ton of the "roll." Where the
judgment is offered as evidence of
mora than the res ipsa and is re-
lied on as evidence of title acquired
by sale under it, the whole record
under our practice the judgment
roLl-mpst be produced. In my
opinion there are other reasons for
this than the one suggested in the
opinion of the Court, and questions
may be determined by inspection
Of the Judgment roll besides the one
relating to the acquisition OF juris-
diction of the subject matter. The
rule is technical and is based upon
the solemnity accorded by the law
to every PARTON of the record. Ths
record is to be read as a whole, each
portion connected inseparably with
the other portions.


hFDK