through which the purchaser might be evicted. The fact that the deed commences with a description of the grantor as collector, negatives the supposition that he is to assume such responsibility. It is the deed of a public officer, made in his public capacity. The covenants are not personal, but official, and the action must fail." It may be remarked, that it would be extremely unjust to hold the collector responsible upon a covenant, which he entered into under the compulsion of a statute form, for a defect in the title of the purchaser at the tax sale, growing out of the fraud, neglect, or ignorance of the person who listed and assessed the land, a proceeding in which the collector took no part whatever, and who had no manner of control over the officer who did, in fact, conduct it. Whether the collector might not be responsible for his own omissions, neglect, and other irregularities upon such a covenant, is undecided. No objection, however, can be perceived to a recovery of the consideration money in such a case. Even an action on the case would lie against him, in which the purchaser, if he sustained his action, would recover the full amount of damages actually incurred. The only argument against a recovery upon the covenant is, that it is a compulsory one; the answer to which is, no one is compelled to accept an office, but if he does so, he assumes the full measure of responsibility for its faithful execution which the law has imposed upon the incumbent for the time being. Where the officer voluntarily covenants against his own acts, and for the regularity of the anterior proceedings, there is no question of his liability to the covenantee, his heirs and assigns. This is conceded in the foregoing cases, and is fully sustained by the authorities in those which are analogous in principle. CHAPTER XXX. OF THE CONSENT OF THE OWNER TO IRREGULARITIES IN THE PROCEEDINGS. IT may be laid down as a general rule of law, that where an irregularity of such a character as to affect the power of the officer to sell takes place in any part of the proceedings, and the owner of the land, being aware of the fact, is silent, and takes no steps to prevent the sale, but permits it to proceed, or even actually consents to waive the irregularity, a sale under such circumstances will not be recognized in a court of law. The officer derives his authority from the law; and not from the owner. He must obey the law, and not the orders of a private individual. When he keeps within the pale of his authority, minor irregularities may be cured, or waived, by the party in interest, without impairing the official character and validity of the proceedings; but the authority itself, or any substantial link in the series of acts which are necessary to establish the existence of the power, cannot be supplied or enlarged, so as to give official character and validity to acts not authorized or sanctioned by the plain provisions of the statute. This was the doctrine established by the Supreme Court of Alabama, in the case of Scales v. Alvis,1 where the statute provided, that the collector should advertise the delinquent list three months prior to the sale; and the facts were, that the advertisement was first inserted January 4, 1843, announcing that the sale would take place February 1, 1843, and the collector, discovering his error, amended the advertisement, by changing the day of sale to April 4; but this was done after the first publication, so that the full three months' notice, re 1 12 Alabama, 617. quired by law, was not, in fact, given. The collector notified the delinquent owner of the error, and the latter consented to it. The court held, that the sale was a nullity, and the consent of the owner did not cure the irregularity. The same principle was applied in Kentucky, to a sheriff's sale, where the officer seized and sold more land of the judgment debtor than was necessary to satisfy the execution. This was an irregularity which, by the law of Kentucky, rendered the sale void; but it further appeared in the case, that the debtor had consented to the levy, and actually received the surplus of the sale money. The sale was declared illegal and void, and the judgment debtor was not estopped at law from relying upon the error to defeat the title of the purchaser. this case the court intimated, that if the sale had any validity at all, it derived it from the individual acts and private authority of the debtor, and that, probably, a court of equity would treat the proceeding as creating a contract by way of estoppel, and compel the completion of the purchaser's titlę. In And in Buchannon y. Upshaw,2 the Supreme Court of the United States held, that where the owner of land recognized a sale of it, made by a person who had no authority to sell, there was a privity of contract between the owner and purchaser, which a court of equity would enforce. Whether this doctrine is applicable to a tax sale, and whether a court of equity would undertake to supply a want of power in the officer, by the simple consent of the owner-substitute a private, in lieu of a public authority to do an act and enforce a sale of a valuable tract of land for a trifling consideration - an unconscionable bargain— has never been decided. It is predicted, however, that such a case would find but little favor in that forum; and it will be shown hereafter, that a tax sale which is void at law, can, in no conceivable case, be aided by a court of equity. No act done under a statutory power, which is void for non-compliance with the letter and spirit of the law, can be aided there. Chancery possesses no dispensing or substitutional power. 1 Isaacs v. Gearheart, 12 B. Monroe, 231. 2 1 Howard (U. S.), 56. CHAPTER XXXI. OF SALES OF LAND FOR TAXES, UNDER THE CHARTERS AND A municipal corporation possesses no authority to levy and collect taxes upon property situated within its corporate limits, unless under an express grant from the legislative power of the State. The power to tax is one of the highest attributes of sovereignty. It involves the right to take the private property of the citizen without his consent, and without other compensation than the promotion of the public good. Such interference with the natural right of acquisition and enjoyment guaranteed by the constitution, can be justified only when public necessity clearly demands it. Being a sovereign power, it can be exercised only by the general assembly, when delegated by the people, in the fundamental law; much less can it be exercised by a municipal corporation without a further unequivocal delegation by the legislative body. But the legislature have competent authority to delegate the power of taxation to municipal corporations, for the purpose of enabling them to carry into effect the trust committed to their charge. All lands and other property are held on the implied condition that they may be taxed equally for general and local purposes.2 But in all cases, the corporation to whom the power is committed, must exercise it according to the principles which control the exercise of the taxing power under the constitution.3 And they must conform to the mode 1 Mays v. Cincinnati, 21 Ohio, 273; Sharp v. Speir, 4 Hill, 76. 2 Cheaney v. Hooser, 9 B. Monroe, 330; Talbot v. Dent, 9 B. Monroe, 526; Hope v. Deaderick, 8 Humphreys, 1. 8 Hope v. Deaderick, 8 Humphreys, 1; Fitch v. Pinckard, 4 Scammon, 69. and manner of levying and collecting the tax prescribed by the charter, which constitutes their organic law. They take no powers whatever by implication, unless absolutely necessary to carry into effect some power expressly delegated to them. The rule is thus laid down in Sharp v. Speir.2 "A corporation must show a grant, either in terms or by necessary implication, for all the powers which it attempts to exercise; and especially must this be done when it claims the right, by taxing or otherwise, to divest individuals of their property without their consent. The exercise of the corporate franchise being restrictive of individual rights, cannot be extended beyond the letter and spirit of the act of incorporation. The power to sell is a high prerogative power." The power is a limited one,3 and must be strictly construed and pursued. Thus, although the State may resort to summary proceedings to collect a tax, by imprisoning the body, or selling the goods or lands of the delinquent, it is otherwise with a corporation, unless there is an express grant in their charter. By the common law, corporations cannot make a by-law to enforce the payment of taxes, by warrant to distrain and sell the goods and lands of a party who has neglected to pay his dues. When the taxes are legally assessed, they become a debt due to the corporation, and if not paid, must be recovered in due course of law. An action of assumpsit is the appropriate remedy to recover the tax, in all cases where the charter is silent as to the mode of collection." And where express power was conferred upon a town corporation, to levy taxes and sell lands for the non-payment of them, 1 Mack v. Jones, 1 Foster, 393; Dillingham v. Snow, 5 Massachusetts, 547; Williamsport v. Kent, 14 Indiana, 306; Stetson v. Kempton, 13 Massachusetts, 272. 24 Hill, 76. 8 West School District of Canton v. Merrills, 12 Connecticut, 436; Kemper v. McClelland, 19 Ohio, 324. 402. Nicholl v. Nashville, 9 Humphreys, 252. See Dean v. Madison, 9 Wisconsin, 5 Bergen v. Clarkson, 1 Halsted, 352. Mayor v. Howard, 6 Harris & Johnson, 383; Dugan v. Mayor, 1 Gill & John son, 499. |