Coleman v. Hart

Cole, J.

To defeat a recovery in the action the defendants offered in evidence the tax deed issued to H. 0. Fairchild, November 23, 1868, referred to in the answer, and under which they claimed the premises in controversy. In order to impeach the validity of that deed, and to destroy the title therein granted, the plaintiff offered to show that the grantee, Fairchild, was deputy treasurer at the time he purchased the tax certificates upon which the tax deed was issued, and also that he was deputy treasurer when the tax deed was issued to him. This evidence was objected to and excluded by the court as incompetent and immaterial. The correctness of this ruling is the only matter we need consider; since it is manifest that if the proposed testimony was inadmissible, the tax deed afforded a perfect defense to the action.

It is claimed on the part of the plaintiff, that Fairchild was absolutely prohibited from purchasing the tax certificates and from taking the tax deed, by ch. 276, Laws of 1864 (Tay. Stats., 337-8, §§ 229-231), and that the tax deed was void.

*183 That statute, in substance, enacts that it shall not be lawful for any county treasurer, or clerk of the county board of supervisors, or any of their deputies or clerks, or any other person for them, to .purchase, directly or indirectly, property sold for taxes at any tax sale, or to purchase any tax certificate or tax deed held by the county, except for and on behalf of the county; and a violation of the provisions of the act is made a misdemeanor punishable by fine or imprisonment; and also any tax certificate or tax deed issued in violation of the act is declared null and void.

It is now claimed by the counsel for the defendants, that there is nothing in this enactment which prohibits a county treasurer or his deputy from purchasing a tax certificate from other parties than the county; and therefore, if Fairchild was deputy treasurer when he purchased the tax certificate on which the deed issued, and at the date of the deed, still that this in no way affected the validity of the deed, unless he purchased the land at the tax sale or purchased the certificate from the county. It seems to us that this construction of the statute is correct and must prevail.

The statute forbids the doing of two things: first, it prohibits the treasurer or his deputy from purchasing directly or indirectly property sold for taxes at any tax sale; second, it prohibits such officers from purchasing any tax certificate or tax deed held by the county, except, etc. It was not proposed to show that Fairchild was deputy treasurer when the land was sold for taxes in 1861, and then directly or indirectly purchased it at the tax sale; nor was it proposed to show that he purchased the certificates of the county while laboring under the disability. It will be seen that the prohibition in the latter clause is not general. It does not forbid the officer from purchasing a tax certificate or tax deed at all, from any person, but prohibits him from purchasing them from the county. It is said that the intention of the statute was to inhibit the purchase of this species of property by these officers, in order to *184 prevent all fraud or corruption growing out of the speculation .in tax certificates bj them. If this was really the intention and design of the legislature, why was not the prohibition made general, forbidding-the purchase by those officers of a tax certificate or tax deed from any one, instead of restricting it to a purchase from the county ? The statute is penal in its character, and it would be a violation of all rules of construction to enlarge its provisions as contended for by the counsel for the plaintiff. According to our view, the offer was not broad enough in regard to the grantee in the tax deed, in order to destroy the effect of that instrument. The plaintiff should have proposed to show that Fairchild was deputy treasurer, or other officer within the act, when the tax sale took place, and purchased the land at such sale; or that he purchased the tax certificates from the county while acting as deputy. This would have brought the deed within the provisions of the statute. As thé offer was not broad enough to make the evidence material, the ruling of the court was correct. For aught' it was proposed to prove, the grantee in the tax deed might have owned the tax certificates long before his appointment as deputy treasurer, or he might have bought them of some third person of whom he was at liberty to purchase.

We express no opinion upon the other questions discussed by counsel on the argument.

It results from these views that the judgment of the circuit court must be affirmed.

By ike Court.— Judgment affirmed.