Klokke v. Stanley

Mr. Justice Scholfield delivered the opinion of the Court: The question presented by this record is, whether a county clerk who has once executed a tax deed at the instance of the holder of the certificate of purchase at a tax sale, upon evidence then furnished by such holder, can be subsequently compelled, by mandamus, to execute to the same party another tax deed under the same certificate of purchase, the holder thereof having filed with the clerk additional and more per-feet evidence of his having complied with the law in respect to giving notice, etc., since the execution of the first deed. Our answer must be in the negative. It is true, where a clerk has himself made a mistake in executing a tax deed, whereby it is rendered inoperative for the purpose for which it was intended, he may subsequently be compelled, by mandamus, to correct his mistake, and, of course, may make the correction without being coerced thereto by judgment of court. (Maxcy v. Clabaugh, 1 Gilm. 26. And to the same effect is McCready v. Sexton, 29 Iowa, 356.) But here the clerk has made no mistake. The mistake made is that of the party applying for the deed, and relates to proof which it was his duty to furnish to the clerk, and which he assumed to furnish to the clerk, before applying for his deed. If he may have mandamus to compel the clerk to make a new deed upon his alleged correction of one mistake, may he not also have it to compel the clerk to make a new deed upon his alleged correction of another mistake ? Where is it to end ? The owner of the land to be affected is not before us, and has no opportunity to be heard upon this question. If this mandamus will lie, will it not afford a precedent whereby purchasers at tax sales may, by adroit manipulation, obtain the opinion of the court upon the validity of a given title before the land owner has any opportunity to be heard ? The rule is, a party applying for a mandamus must show a clear, legal right to have the thing sought by it to be done, and if the granting of the writ will do the party applying for it no good, it will be refused. People v. Chicago and Alton R. R. Co. 55 Ill. 95; Commissioners of Highways v. Bonker, 66 id. 339; People v. City of Elgin, id. 507; People v. Klokke, 92 id. 134; People ex rel. v. Dulaney, 96 id. 503; People ex rel. v. Johnson, 100 id. 537. And so the question of the sufficiency of the deed to convey the title, when made as asked, would always be a pertinent question in such eases. We think it is contrary to the policy of the law that mandamus should issue where its sole purpose and effect is, as it is here, to relieve from the consequences of the mistakes or omissions of the party applying for it. The judgment is reversed and the cause remanded. Judgment reversed.