Haxton v. Harris

*512 The opinion of the court was delivered by

Brewer, J.:

Statement of facts. The facts in this case are briefly these: In .1872 the taxes on the lots described in the petition were not paid. Upon the record it appeared that at the sale in 1873, for non-payment of such taxes, the lots were sold to one Calvin Fisk, and the certificate of sale issued to him, ; 7 and by him indorsed. The taxes of 1873 were afterward charged up on the sale-certificate. As a matter of fact, Fisk did not buy, had no interest in the sale-certificate, and indorsed it merely as a matter of accommodation, and the issue of the certificate was merely a cover for a private speculation of the treasurer, who was the party actually paying the money into the treasury. In 1874 certain proceedings were had, in which, at the instance of the then owner of • the lots, the sale-certificate was adjudged void. In August 1875, on-return of such certificate the money was refunded by the then treasurer. Such treasurer was in 1873 the deputy of the treasurer who engaged in this speculation, and the party who conducted the business of the office, and therefore cognizant of the facts of the speculation. In March 1875 the plaintiff became the owner of the lots by purchase. In July 1875, the treasurer advertised these lots for sale (to be sold 7th September 1875) as lots which the treasurer had unavoidably omitted or failed to sell at prior tax sales. The plaintiff thereupon brought this action to restrain such sale. The district court decided against him, and he now brings, the ruling here for review.

1. „ . . pürchas“at tax sale. Two things are clear, first, that the owner of the lots has never paid the taxes of 1872 and 1873; and second, that the treasurer took nothing by his attempted purchase. It is generally true, that one cannot be seller and buyer at the same time. “No man can serve two masters.” And a treasurer cannot be a purchaser either directly or indirectly at tax sales conducted by himself, (Cooley on Taxation, 341, and cases cited.) The difficult question is: To what extent may the owner profit by *513 the treasurer’s wrong? The plaintiff contends that the treasurer not only takes nothing by his attempted purchase, but also forfeits the money he paid on such purchase, and that he, the owner, has a right to have the money paid as purchase-money appropriated to the satisfaction and payment of his taxes; in other words, that the treasurer’s wrong should inure, not to the benefit of the public, but to that of himself, the lot-owner. But how has the wrong of the treasurer injured the lot-owner? If he had paid the taxes at the time they were due, no sale would have been attempted. His default made the opportunity. Being in default, a sale was imperative. If the treasurer had not ventured on this speculation, a sale would have been had to an individual, or to the county, and in either event interest would have begun to run on the taxes. But the sale to the treasurer being void, no interest has run on the delinquent taxes, and to that extent at least the lot-owner has been benefited by the wrongful conduct of the treasurer. The burden of taxes was'never made larger by anything the treasurer did. It may be said that, possibly at the sale, if open and free, some one might have bid less than the entire property. This is doubtless true, and therefore the lot-owner is wronged, and the sale void. But in fact such a result seldom if ever happens at our tax sales, and if it did, in no way is the amount of the tax reduced. And is not the wrong fully remedied so far as the lot-owner is concerned when the sale is set aside? He has the same opportunity for payment of his taxes, without interest or costs, as before the attempted purchase. If he fails still to pay, and the lot is again sold, he has the same length of time in which to redeem that he would have had if the first sale had been valid. He stands in all respects, and as to all rights and liabilities, as he stood at the time of such illegal purchase. Wherein then has he, more than any other individual, special claim to appropriate the money wrongfully paid by the treasurer into the county funds? Unquestionably that money so paid by the treasurer is forfeited. He cannot recover it from the county, and the sub *514 sequent payment in this case by the present treasurer was without warrant of law. But if forfeited, why not forfeited to the benefit of the entire public ? As a general rule, forfeitures inure to the benefit either of the public, or of the party in whose hands the thing forfeited is at the time of the forfeiture; and in this case that was the county.

2 Lien on lanas for taxes. Again, at the time of the attempted sale the county had a lien for taxes. The treasurer paid so much for the purpose purchasing that lien. Public policy forbade such a sale; the lien never passed to the treasurer. Did it not remain with the county? and why cannot the county still enforce it against the property? Grant, that by reason of the wrong the law will never aid the treasurer in recovering the money, and that the county may claim it as forfeited: by what right does the lot-owner claim that it is forfeited for his benefit any more than for the benefit of all the tax-payers ? Does not the ordinary rule of sales obtain, that where an attempted sale fails the purchaser may recover the consideration, or the seller retains it because the law will not help the wrongdoer? And if the seller retains it, he does so as his own property, and not as that of some third party.

3 money illegally paid as taxes. Still again: There was no payment of taxes in the strict sense of the term. The treasurer attempted to buy a tax-lien from the county. He never assumed to act as the agent of the owner, or to discharge the obligations of the property for the taxes. His purchase failed; but in the absence of express statutory authority can anything more be said than that the purchase failed ? By failing * ^ to purchase, does he become an agent to pay? A. attempts to purchase of B. a mortgage-lien which the latter holds on the property of C. For want of authority his purchase fails. Is the mortgage paid? or does it still remain in B/s hands? And by what right can the courts consider A. an agent of C., and his attempted purchase for his own benefit a payment of the lien for G.’s benefit? Everett v. Beebe, 37 Iowa, 452 , is a case somewhat in point. *515 That was an action by the owner against the holder of a tax deed. The deed was held invalid, upon the same principle that the sale herein was adjudged void, because the treasurer was interested in the purchase at the tax sale; yet the owner was required to pay the holder of the tax deed the amount he would have had to pay the county in the first instance, that is, the taxes, without interest or costs. Though the sale was invalid because the treasurer could not directly or indirectly purchase, yet the wrongful act of the treasurer in the sale did not operate in behalf of the owner to pay the taxes. The same principle controls this case. The tax-lien in behalf of the county has not been destroyed, and the taxes have not been paid, and are a valid charge against the property.

This disposes of the case, and compels an affirmance of the judgment.

Valentine, J., concurring.