CHAPTER XV. OF THE SALE OF THE LAND. THE general principles relative to the power of sale have already been fully explained. It has been shown that the authority of the officer to sell depends upon the regularity of the anterior proceedings, and in most instances upon a special precept authorizing him to proceed; and it has also been shown that where the sale is conducted by the wrong officer or person, or where the proper officer makes the sale before his power attaches in point of time, or where he exercises the power after it has become functus officio, the sale is void. But there are important details connected with the auction itself, and the duties of the officer intrusted with the conduct of it, which constitute the subject-matter of this chapter. 1 1. The sale must be a public and not a private one. The object of the law is to secure a fair competition of the biddings. If a secret sale could be sustained, the policy of the legislature would be defeated in this respect. No statute is remembered which does not either in express terms, or by necessary implication, require the sale to be at public vendue. A sale made in violation of the letter or policy of the law, in this particular, is void. *267 *In Keene v. Houghton, the statute required the collector to sell non-resident lands to the highest bidder, at 1 See Scott v. Babcock, 3 G. Greene (Iowa), 133, that by the law of Iowa of 1844, lands were not subject to sale unless the taxes had been due and unpaid for three years; qualifying the case of Noble v. The State, 1 G. Greene, 225. 2 Ante, chapter 2, p. 34; chapter 3, p. 65; chapter 13; Hughey v. Horrell, 2 Ham. 231; Thompson v. Rogers, 4 La. 9; Usher v. Taft, 33 Me. 199. 3 See Cutler v. Brockway, 8 Casey (Penn.), 45. 4 19 Me. 368. public auction after giving due notice, &c. The land in question was struck off to Isaac Tyler, for the taxes and costs, he being the highest bidder. Afterwards, and before the proceedings were returned and recorded, in pursuance of the statute, the defendant Houghton was substituted as a purchaser in lieu of Tyler; and the sale was so returned. A deed was executed and tendered by the collector to Houghton, which the latter refused to receive, because he was advised that the proceeding was illegal, that the collector had no authority to make the substitution. Keene, the collector, thereupon sued Houghton for the purchase-money, and the court held that he was not entitled to recover. Shepley, J.: "In the execution of a power given by statute, there must be a strict conformity to its provisions, or the proceedings will be ineffectual. The person authorized cannot adopt a different mode of proceeding, which he may judge would accomplish the same object in a different manner, and be more beneficial to those interested. The collector in this case is authorized to deed only to the highest bidder, that is, the person who would bid the highest price for the land by taking the least quantity of it, and pay the amount due; and he only could acquire a title to the land by such a sale; for a sale, not in conformity to the provisions of the statute, could not give a title. The bill of exceptions states that Isaac Tyler was the purchaser at the sale; and it does not appear that he refused to comply with the conditions of sale, or that he acted as the defendant's agent, or assented to the transfer of his bid to the defendant; and the plaintiff had no right to substitute the defendant for Tyler as the purchaser." In this case it appeared that the defendant was not present at the sale; if he had been there, and declined bidding, and afterwards, by agreement with Tyler and the collector, been substituted as purchaser, the transaction would have been a fraud upon the law, as its direct tendency would have been to destroy competition at the sale. 268 2. The sale must take place at the precise time fixed by the law, or notice, otherwise it will be void.1 1 Ronkendorff v. Taylor, 4 Pet. 349; Conrad v. Darden, 4 Yerg. 307; Essington v. Neill, 21 Ill. 139; Moore v. Brown, 11 How. (U. S.) 414. See Noyes v. Haverhill, 11 Cush. 338; Pierce v. Benjamin, 14 Pick, 356. The twenty-sixth section of the revenue law of Illinois, of February 26, 1839,1 contemplates a notice of the application. for a judgment upon the delinquent list, and of the sale, in the same advertisement, and fixes the day of sale "on the second Monday next succeeding the said term of the said circuit court," at which the application is made, and in which the judgment is rendered; and the law further provides, "that it shall be the duty of the clerk, within five days after the adjournment of said court, to make out under the seal of said court, a copy of the collector's report, together with the order of the court thereon, which shall hereafter constitute the process on which all lands shall be sold for taxes, and deliver the same to the sheriff of his county; and the sheriff shall thereupon cause the said lands to be sold on the day specified in the notice, given by the collector, for the sale of the same, &c. ;" 2 and the statute further declares, that the deed of the sheriff shall be conclusive evidence "that the sale was conducted in the manner required by law." In the more populous counties of the State, the session of the court continued from two to six weeks; in the smaller counties the court did not sit longer than a week, and in some only for a few days. The question necessarily arose upon the construction of this statute, whether the words, "second Monday next succeeding the term of the court," had relation to the first day of the term, or to the day of the adjournment of the court. In counties where the term of the court was fixed for one week only, it was immaterial which period of computation was adopted, as in either case the day of sale would be cer*269 tainly known to all persons interested in the proceed ing. But where the law authorized the court to continue the term beyond the period of one week, if the time was computed with reference to the day of adjournment, these consequences would follow: 1. The owner and those desirous of attending the sale would be bound to take notice at their peril of the matter of fact as to when the court actually adjourned; and, 2. The sale would not take place uniformly throughout the State. In the small counties, the sale would be on the second 1 Ante,* pp. 193, 194. 2 Ante, *p. 194, sec. 27. Monday succeeding the commencement or end of the term(the term invariably commencing on Monday, or some intermediate day of the week, and ending at twelve o'clock on Saturday night) — while in the larger counties, the day of sale would depend upon the time of the adjournment of the court. On the other hand, as the clerk was authorized and required to deliver the precept of sale to the sheriff, within five days after the adjournment of the court, it seemed to many that the day of adjournment was the time for the commencement of the computation. There seemed to be strong reasons for either construction; for holding that the sale would be legal on the second Monday succeeding the commencement of the term, or on the second Monday after its adjournment. The ambiguity in the language of the law gave rise to a diversity of practice under it; and the day of sale floated between these conflicting opinions, until the passage of the act of 1845,1 which fixed the fourth Tuesday succeeding the commencement of the term," as the day of sale. The varied practice, however, under the old law, gave rise to litigation, and the question at length came before the supreme court, at the December term, 1845, in the case of Bestor v. Powell. This case came up from Peoria county, where the circuit court commenced its term on the 15th, and adjourned on the 28th day of April, 1841. The precept upon the tax judgment was issued on the 24th of that month, while the court was in session; and the sales commenced on the 26th * and ended on the 29th day of April, so that no Monday * 270 intervened between the close of the term and the day of the sale. The court held the sale valid, upon the ground that by fiction of law the term constituted but one day, and that every act of the court had relation to that day; but that without resorting to that fiction, the adjournment might be presumed to follow immediately after the entering of the judgment upon the tax list, as far as that proceeding was concerned; the court in the exercise of this special and summary power, being regarded for the purposes of this question, quoad hoc a special tribunal, the powers of which ceased upon the rendition of the judgment, except so far as it was necessary for the issuing of 1 Revised Statutes, 444, sec. 47. 22 Gilm. 119. the precept to enforce the judgment and to enable the sheriff to make his return of the sale. However, the court intimated an opinion that a sale on the second Monday succeeding the adjournment of the court would have been equally valid; but inasmuch as this question was not fairly presented by the record in that case, it has been very properly regarded as a dictum of the judge who delivered the opinion. In Hope v. Sawyer,1 the question whether such a sale could be sustained, was directly before the court, upon this state of facts the judgment was rendered on the third Monday of September, 1841, being the day of the commencement of the term of the circuit court, the precept issued October 18, 1841, and the sale took place October 19, 1841, which was the second Monday succeeding the adjournment of the court. The sale was held void. Treat, C. J.: "Ought the sale to take place on the second Monday succeeding the first day of the term, or on the second Monday after the close of the term? The opinion was expressed, in the case of Bestor v. Powell, that the former day was the one intended by the legislature; and upon a further consideration of the question, we are well satisfied that such is the proper interpretation of the statute. It was, however, intimated in that case, that a sale made on the latter day would be valid. We cannot assent to such a conclu* 271 sion. * It was evidently the design of the legislature to prescribe an uniform mode for the sale of land for taxes. The time designated for the sale was to apply to all cases. The sale was to be made on the second Monday after the rendition of the judgment. The collector was not vested with any discretion, as to the day of sale. The law fixed the time, and it was his duty to pursue it. If he could properly make sales on both of the days indicated, it would be very difficult to hold that he might not sell on any other day. In requiring the sale to take place on the second Monday after the commencement of the term, the day of sale was made certain. The time when a term of the court shall commence, is a matter of positive law; and the public would, therefore, know to a certainty when the sale would be made. Owners and bidders would have specific 1 14 Ill. 254. |