and the right to sell the property for non-payment defeated.1 A sale after payment or tender conveys no title to the purchaser.2 Alexander v. Hunter, 29 Neb. 259; Wallace's Estate, 59 Pa. St. 401; Montgomery v. Meredith, 17 Pa. St. 42; Reading v. Finney, 73 Pa. St. 467; Hunter v. Cochran, 3 Pa. St. 105; Johnson v. Christie, 64 Ga. 117. Payment extinguishes the tax. Morrison v. Kelly, 22 Ill. 610. Land Twice Assessed.-The fact that the land has been twice assessed to different persons and the payment has been made by only one of them, does not alter the rule. Alexander v. Hunter, 29 Neb. 259; Bradley v. Ewart, 18 W. Va. 598; Montgomery v. Meredith, 17 Pa. St. 42. 1. Morris v. Sioux County, 42 Iowa 416; Iowa R. Land Co. v. Guthrie, 53 Iowa 383; Gaylord v. Scarff, 6 Iowa 179; Wallace v. Brown, 22 Ark. 118; 76 Am. Dec. 421; Davis v. Hare, 32 Ark. 386; Conant v. Buesing, 23 Fla. 559; Blight v. Banks, 6 T. B. Mon. (Ky.) 192; 17 Am. Dec. 136; Morrison v. Kelly, 22 Ill. 610; Mason v. Chicago, 48 Ill. 420; Curry v. Hinman, 11 Ïll. 420; Wall v. District of Columbia, 6 Mackey (D. C.) 194; Griffing v. Pintard, 25 Miss. 173; Montgomery v. Meredith, 17 Pa. St. 42; Ankeny v. Albright, 20 Pa. St. 157; Hunter v. Cochran, 3 Pa. St. 105; Bennett v. Hunter, 9 Wall. (U. S.) 326; Wilbert v. Michel, 42 La. Ann. 853. And see Doty v. Bassitt, 44 Kan. 454; Jackson v. Morse, 18 Johns. (N. Y.) 441; 9 Am. Dec. 225; Bank of Utica v. Mersereau, 3 Barb. Čh. (N. Y.) 328; 49 Am. Dec. 189; Joslyn v. Rockwell, 128 N. Y. 334; Den v. Terrell, 3 Hawks (N. Car.) 283; Hilliard v. Griffin, 72 Iowa 331; Lefebre v. Negrotto, 44 La. Ann. 792; Patton v. Long, 68 Pa. St. 260. To authorize a tax collector to sell land by reason of the non-payment of taxes in any case, the taxpayer must be in default. Doe v. Burford, 26 Miss. 194; Green v. Craft, 28 Miss. 70; Williams v. Camnack, 27 Miss. 209; 61 Am. Dec. 508. a collector, the error may be corrected. Mason 7. Chicago, 48 III. 420. A tax paid on unseated land is applied to the tract for which it is paid, without reference to any mistake of the owner, though the land on which the payment was intended is afterwards sold for taxes. Stephens v. Wells, 6 Watts (Pa.) 325. And see Maxwell v. Hunter, 65 Iowa 121. ment of taxes assessed upon parts of lots described as the whole should have been described, must be treated as a payment of the whole tax where the owner in good faith so intended it. Merton v. Dolphin, 28 Wis. 456. But the pay 2. Walton v. Gray, 29 Iowa 440; Rayner v. Lee, 20 Mich. 384; Sigman Rowland v. Doty, Harr. (Mich.) 3; Pickler, 94 Mo. 382; Kinsworthy v. v. Lundy, 66 Miss. 522; Huber v. Austin, 23 Ark. 375; Laird v. Hiester, 24 Pa. St. 452; Dougherty v. Dickey, 4 W. & S. (Pa.) 146; Breisch v. Coxe, St. 129; Reading v. Finney, 73 Pa. St. 81 Pa. St. 336; Brown v. Day, 78 Pa. 467: Cadmus v. Jackson, 52 Pa. St. 295; Schenk v. Peay, 1 Dill. (U. S.) 267; Tracey v. Irwin, 18 Wall. (U. S.) Matthews v. Buckingham, 22 Kan. 166; 549; Atwood 7. Weems, 99 U. S. 183; Martin v. Snowden, 18 Gratt. (Va.) 100; Jones v. Dils, 18 W. Va. 759; Randall v. Dailey, 66 Wis. 285; Sprague v. Coenen, 30 Wis. 209. The rule applies to wild lands. Rish v. Ivey, 76 Ga. 738. Even though a payment is the result of a mistake, a collector has no power to cancel it and revive the assessment. Mason v. Chicago, 48 Ill. 420; Richmond v. Brown, 66 Me. 373. Though where money received in payment of a tax is applied to the payment of another tax through the mistake of A tax sale of land as unseated will transfer no title to the vendee, when the land sold constitutes a part of a seated tract upon which the taxes have been paid. Kramer v. Goodlander, 98 Pa. St. 366. In Sprague 7. Coenen, 30 Wis. 209, it was held that where lands were sold for taxes which had previously been paid, the Statute of Limitations as to tax deeds did not run in favor of the grantee. When a taxpayer has paid before sale, he is not required to make a tender to the purchaser before bringing suit to set aside the sale. Lefebre v. Negrotto, 44 La. Ann. 792. But if the owner voluntarily redeems lands sold for taxes after they have been paid, he cannot recover from the county the amount paid for such redemption. Morris v. Sioux County, 42 Iowa 416. Nor will the misapplication of a payment by the tax officer destroy its effect as a payment.1 2. Involuntary Payment.-(See infra, this title, Remedies for Erroneous and Illegal Taxation; DURESS, vol. 6, p. 57; PAYMENT, vol. 18, p. 148.) XIV. COLLECTION-1. How Provided For.-The power to levy taxes necessarily carries with it the power to enforce their collection, and to provide the means necessary to accomplish this object. Subject to constitutional restrictions, the choice of The rule is the same whether the sale is made through the inadvertence or mistake of the parties concerned, or in positive disregard of the fact of pay ment. Myrick v. Montgomery County, 33 Ind. 333; Hickman v. Kempner, 35 Ark. 505; Stephens v. Wells, 6 Watts (Pa.) 325. Tender of Taxes.-A sale of lands for taxes after tender of payment by the owner, though it is assessed in the name of another person, does not divest him of his title. Kinsworthy v. Austin, 23 Ark. 375. Where a taxpayer tenders the amount of taxes due from him to the collector, which he refuses because the collection of the taxes for that year has been enjoined in a suit to which the taxpayer is not a party, and the injunction is dissolved, it is necessary, before the taxpayer can be placed in default for nonpayment, that a demand be again made. Doe v. Burford, 26 Miss. 194. Tender Suspends Interest.-The tender of the tax suspends the running of interest. Iowa R. Land Co. v. Carroll County, 39 Iowa 151. 1. Dougherty v. Dickey, 4 W. & S. (Pa.) 146; Montgomery v. Meredith, 17 Pa. St. 47; Henderson v. Robinson, 76 Iowa 603; Huber v. Pickler, 94 Mo. 382; Jones v. Dils, 18 W. Va. 759. Thus, a payment is not defeated by its application to the taxes of other persons. Henderson v. Robinson, 76 Iowa 603; Maxwell v. Hunter, 65 Iowa 121; Lefebre v. Negrotto, 44 La. Ann. 792. Or to the payment of taxes on other property than that designated by the taxpayer. Dougherty v. Dickey, 4 W. & S. (Pa.) 146; Hickman v. Kempner, 35 Ark. 505. Where a tax payment is expressly made to satisfy a particular assessinent, the collector, if he receives it, must apply the money to the purpose specified, and no other. Fuller v. Grand Rapids, 40 Mich. 395. Taxpayers are authorized to rely upon the officer to whom payment is made for the proper application of the money given them, and justice will not permit them to lose their lands through the mistake of officers in whom they are authorized to confide. Henderson v. Robinson, 76 Iowa 603. And see Corning Town Co. v. Davis, 44 Iowa 622; Corbin v. Stewart, 44 Iowa 543; Fenton v. Way, 40 Iowa 196. Where the owner of unseated land pays the amount demanded of him by the treasurer, but the payment is credited to another tract and his land is sold for non-payment, the sale is void. Laird v. Hiester, 24 Pa. St. 452. And see 2. Morrison v. Larkin, 26 La. Ann. 701; Slack v. Ray, 26 La. Ann. 675; Gibson v. Mason, 5 Nev. 283; State v. Consolidated Va. Min. Co., 16 Nev. 432; Languille v. State, 4 Tex. App. 312; Clegg v. State, 42 Tex. 605. Vandine, Petitioner, 6 Pick. (Mass.) 187; Nightingale, Petitioner, 11 Pick. (Mass.) 168; Biscoe v. Couller, 18 Ark. 423; Brooklyn v. Cleeves, 1 Hill & D. Supp. (N. Y.) 231; Buffalo v. Webster, 10 Wend. (N. Y.) 99; Bervear v. Com., 5 Wall. (U. S.) 475. 3. Green v. Gruber, 26 La. Ann. 694; Youngblood v. Sexton, 32 Mich. 406; 20 Am. Rep. 654; Litchfield v. Vernon, 41 N. Y. 130. And see Chalker v. Ives, 55 Pa. St. 81. Constitutional provisions, providing a method for the collection of municipal taxes, are not self-operative, and laws on the subject previously in force, continue in operation, until they are otherwise abrogated. New Orleans v. Wood, 34 La. Ann. 732. 4. See Mason v. Rollins, 2 Biss. (U. S.) 99; Edwards v. Williamson, 70 Ala. 145; Litchfield v Vernon, 41 N. Y. 130: Appeal Tax Ct. v. Union R. Co., 50 Md. 275; Languille v. State, 4 Tex. App. 312. And see supra, this title, The Power to Tax. methods for the collection of taxes is within the discretion of the legislature.1 2. The Collector-a. SELECTION, REMOVAL, RESIGNATION, ETC. -Sometimes statutes provide that the tax collector shall be elected by popular vote; 2 other statutes provide that he be appointed. And treasurers, sheriffs, constables, and other offi cers, are, in some instances, authorized to act as collectors.4 But whether elected or appointed, or designated in any other manner, the collector must be chosen in the manner provided by law, and must possess the necessary qualifications.5 The duties which the law imposes upon the collector can be performed only by the person designated by the statute, 1. In re Elizabeth, 49 N. J. L. 488; State v. State Board of Assessors, 54 N. J. L. 90; Youngblood v. Sexton, 32 Mich. 406; 20 Am. Rep. 654; State v. Central Pac. R. Co., 21 Nev. 260; State V. Mayhew, 2 Gill (Md.) 487; Mason v. Rollins, 2 Biss. (U. S.) 99. And see Falconer v. Shores, 37 Ark. 386; People v. Seymour, 16 Cal. 334; 76 Am. Dec. 521; Reg. v. Burnskill, 8 U. C. Q. B. 546. A constitutional provision for the method of taxation is not self-operative, and previous collection statutes continue in force until abrogated. New Orleans v. Wood, 34 La. Ann. 732. 2. See Appeal of Town Council (Pa. 1888), 15 Atl. Rep. 730; Castle v. Lawlor, 47 Conn. 340. 3. Taft v. Barrett, 58 N. H. 447; Com. v. Perkins, 7 Pa. St. 42. In Falconer v. Shores, 37 Ark. 387, it was said that the legislature might provide for the selection of collector, in any manner it chose. In New Hampshire, it has been held that the appointment of a tax collector, by the selectmen of a town, must be made in writing and recorded. worth v. Dean, 21 N. H. 400. Ains 4. See Wilson v. Seavey, 38 Vt. 221; Chandler v. Spear, 22 Vt. 388; Falconer v. Shores, 37 Ark. 386; Scarry v. Lewis, 133 Ind. 96; Hays v. Drake, 6 Gray (Mass.) 387; Youngblood v. Sexton, 32 Mich. 406; 20 Am. Rep. 654; Homer v. Cilley, 14 N. H. 84; Bailey v. Lockhart, 4 Yerg. (Tenn.) 567. Where the sheriff is required to act as collector, he is usually given the same authority as though he were elected or appointed collector. Homer v. Cilley, 14 N. H. 85. As to the collection of taxes by a coroner, see State v. Irby, 1 McMull. (S. Car.) 485. Collectors not Constables.-In Gage v. Dudley, 64 N. H. 437, it was held that a constable's power vested in a collector to serve process for the purpose of collection of taxes, did not make him constable for any other purpose. 5. See Com. v. Browne, 1 S. & R. (Pa.) 382; Lincoln v. Chapin, 132 Mass. 470. In Souhegan Nail, etc., Factory v. McConihe, 7 N. H. 309, it was held that where a collector is appointed, pursuant to a statute, the warrant issued to him is sufficient evidence of his appointment, to justify his acting as such. In Taft v. Barrett, 58 N. H. 447, it was held that an appointment of L. D. F. "collector of a town," is a sufficient appointment of L. D. F. as "collector of taxes." Who May Question Authority.-Every person who pays taxes in a ward or township, has such an interest as authorizes the filing of an information, at his instance, to inquire by what authority the collector exercises his office. Com. v. Browne, 1 S. & R. (Pa.) 382. Not Subject to Collateral Attack.-In Law v. People, 87 Ill. 385, it was held that the right to an office held by a tax officer, cannot be attacked in a collateral proceeding brought to test the validity of a tax sought to be collected. See also Odiorne v. Rand, 59 N. H. 504. 6. Hadley v. Chamberlin, 11 Vt. 618; Fremont v. Boling, 11 Cal. 380; Butler v. Nevin, 88 Ill. 575; Johnston v. Wilson, 2 N. H. 202; 9 Am. Dec. 50; Odiorne v. Rand, 59 N. H. 504; Com. v. Browne, I S. & R. (Pa.) 382; Waite v. Hyde Park Lumber Co., 65 Vt. 103; Thompson v. Allen County, 13 Fed. Rep. 97; Bryan v. Harvey, 11 Tex. 311. Neither the whole, nor any part, of or by his deputy. Upon the refusal of a collector to act or qualify, or upon a vacancy, a new collector may be chosen.2 b. QUALIFICATION.-The collector must give the bond or security, and take the oaths required by law. The bond and oath must conform to the statute. But, while this is so, it is the duties of a collector in collecting taxes, can be assigned to another. Hadley v. Chamberlin, 11 Vt. 618. A collector pro tem cannot be appointed for the purpose of collecting arrearages. Hadley v. Chamberlin, II Vt. 618. In Crowell v. Barham, 57 Ark. 195, it was held that a deputy sheriff cannot discharge the duties of tax collector, even though his principal is both tax collector and sheriff. 1. The collector is a ministerial officer, and may act by deputy. See Aldrich v. Aldrich,8 Met. (Mass.) 102; Williamstown v. Willis, 15 Gray (Mass.) 427; Holden v. Eaton, 8 Pick. (Mass.) 436; Walters v. Duke, 31 La. Ann. 668. In Aldrich v. Aldrich, 8 Met. (Mass.) 102, it was held under the Massachusetts statute, that a deputy collector who is also a town treasurer, may execute a warrant for the collection of taxes, though he was appointed deputy before the warrant was issued and the warrant is directed to the collector only. In Wilhelm v. Cedar County, 50 Iowa 254, it was held that a board of supervisors may employ a special agent or attorney, to assist in the collection of taxes not collectible by the county treasurer in the ordinary discharge of his duty. 2. See Carville v. Additon, 62 Me. 459; People v. Callaghan, 83 I. 128; Ridgway Tp. v. Wheeler, 90 Pa. St. 450. Failure to Qualify. In Falconer v. Shores, 37 Ark. 386, it was held that upon a failure of the sheriff to qualify as collector, by giving bonds, the office becomes vacant without a judicial ascertainment of the vacancy, and a new collector may be appointed. See also Bailey v. Lockhart, 4 Yerg. (Tenn.) 567; Johnston v. Wilson, 2 N. H. 202; 9 Am. Dec. 50. The collector's removal from his district, has been held to vacate the office. Gage v. Dudley, 64 N. H. 437. The resignation of a collector will not be inferred, as a matter of law, from his default and the delivery of his tax warrants to the selectmen, and his refusal to proceed with the collection. Spaulding v. Northumberland, 64 N. H. 153. Expiration of Term. In Haley v. Petty, 42 Ark. 392, it was held that a collector's term continues until his successor is elected and qualified. See also PUBLIC OFFICERS, vol. 19, p. 378. 3. See PUBLIC OFFICERS, vol. 19, pp. 378, 440; OATH, vol. 16, p. 1017. Acceptance of Bond.-When a bond is produced in a trial by the state, it is prima facie evidence of acceptance. McLean v. State, 8 Heisk. (Tenn.) 22. Approval. It has been held that the approval of a collector's bond is a ministerial act, and that mandamus lies in a proper case, to compel it. Bosely v. Woodruff County Ct., 28 Ark. 226. New Bond.-In Texas, it has been held that a tax collector may be required to furnish a new bond, at the pleasure of the court, without first having been cited to appear and show cause. Poe v. State, 72 Tex. 625. Amount of Bond.-It is usual to require from the tax collector, a bond for double the aggregate amount of taxes. Kane v. Garfield, 60 Vt. 79. Illinois. As to the oaths and the commencement of the term of office of a town collector, under the Illinois statute, see People v. Callaghan, 83 Ill. 128. As to notice of the amount of taxes to be collected, see Ross v. People, 78 Ill. 375. 4. Bradley v. Rapp, 10 La. Ann. 589; Farnsworth County v. Rand, 65 Me. 21. A bond for a less amount than that required by statute, is void. Oatman v. Barney, 46 Vt. 594. In Alabama, a bond was held void where it was made payable to the county court, when the statute required that it should be made payable to the governor. Calhoun . Lunsford, 4 Port. (Ala.) 345. But in Texas, where the bond was required to run to the county judge, it was held that the county was protected by a bond running to the governor. King v. Ireland, 68 Tex. 682. Cure of Omission to Give Bond.-The failure to give a bond required by statute, and not by constitution, may be usually held that mere formal irregularities and mistakes may be disregarded.1 As a bond, whether required by statute or not, may be good at common law, if entered into voluntarily and for a valuable consideration, it follows that a collector's bond, though not in the statutory form, may yet be binding as a common-law bond.2 The execution of the bond is not always a condition precedent to the collector's assuming his official duties.3 The lawful acts of a de facto collector, as such, are valid; thus, payment to him will discharge a tax. The presumption that remedied by a curative act. Powers v. Penny, 59 Miss. 5. 1. See DeSoto County v. Dickson, 34 Miss. 150; Wilder v. Butterfield, 50 How. Pr. (N. Y.) 385. A collector's bond will hold the sureties to a liability for all moneys actually collected, even though the condition for accounting and paying over is left out. State v. Hill, 17 W. Va. 452. A bond in which the sureties bind themselves in several amounts, the aggregate of which is equal to the statutory sum required, is valid against both principal and sureties, though there is no specification as to the amount to which the principal is bound. People v. Love, 25 Cal. 521. 2. Sooy v. State, 38 N. J. L. 324; Horn v. Whittier, 6 Ñ. H. 88; Walker v. Chapman, 22 Ala. 116; Dudley v. Chilton County, 66 Ala. 593; Sweetser v. Hay, 2 Gray (Mass.) 49; Wilder V. Butterfield, 50 How. Pr. (N. Y.) 385; Claasen v. Shaw, 5 Watts (Pa.) 468; 30 Am. Dec. 338; Dixon v. U. S., I Brock. (U. S.) 177; U. S. v. Howell, 4 Wash. (U. S.) 620; U. S. v. Fingey, 5 Pet. (U. S.) 115; Trescott v. Moan, 50 Me. 347;_ Scarborough v. Parker, 53 Me. 252; Boothbay v. Giles, 68 Me. 160; Gorham v. Hall, 57 Me. 58; Stevens v. Almen, 19 Ohio St. 485; People v. Collins, 7 Johns. (N. Y.) 554; State v. Matthews, 57 Miss. 1; State v. Harney, 57 Miss. 863. And see DeSoto County v. Dickson, 34 Miss. 150; Harris v. State, 55 Miss. 50; French v. State, 52 Miss. 759; Byrne v. State, 50 Miss. 688; Taylor v. State, 51 Miss. 79; Lewenthal v. State, 51 Miss. 645; James v. State, 55 Miss. 57; 30 Am. Rep. 496; St. Joseph County v. Coffenbury, Mich. 355; Post Master Gen❜l v. Rice, Gilp. (U. S.) 554 Seal-A tax collector's bond which lacks a seal, may be binding upon him as a simple contract. Wilder v. But terfield, 50 How. Pr. (N. Y.) 385; Richardson v. Rogers, 50 How. Pr. (N. Y.) 403; Boothbay v. Giles, 68 Me. 160. Collector Appointed by Military Authority. The bond of a collector appointed by the military government, is valid security for those interested, though the collector is not governed by the state tax laws. State v. Cooper, 53 Miss. 615. 3. Scarborough v. Parker, 53 Me. 252; Morrill v. Sylvester, 1 Me. 248; Boothbay v. Giles, 68 Me. 160. And see Bosley v. Woodruff County Ct., 28 Ark. 306; People v. Callaghan, 83 Ill. 128; Drew v. Morrill, 62 N. H. 23. But the acts of a collector have been held invalid where a bond was not given. Oatman v. Barney, 46 Vt. 594; Courser v. Powers, 34 Vt. 517. 4. Oldtown v. Blake, 74 Me. 280; Orono v. Wedgewood, 44 Me. 49; State v. Woodside, 8 Ired. (N. Car.) 104. And see Waters v. State, 1 Gill (Md.) 302; Com. v. Philadelphia, 27 Pa. St. 497; Stockle v. Silsbee, 41 Mich. 615; Facey v. Fuller, 13 Mich. 527; Douglass v. Wickwire, 19 Conn. 489; Sullivan v. State, 66 Ill. 75; Williams v. School District, 21 Pick. (Mass.) 75; 32 Am. Dec. 243; Tucker v. Aiken, 7 N. H. 113; Wilcox v. Smith, 5 Wend. (N. Y.) 234; 21 Am. Dec. 213; Burke v. Elliott, 4 Ired. (N. Car.) 355; 42 Am. Dec. 142; Kingsbury v. Ledyard, 2 W. & S. (Pa.) 37; Farmers', etc., Bank v. Chester, 6 Humph. (Tenn.) 458. But see Houston v. Russell, 52 Vt. 110. |