State ex rel. Osborn v. Jennings

Cox, J. — This action for mandate was begun to compel appellee as auditor to issue to relatrix a deed on a certificate of sale of three town lots for delinquent taxes, relatrix having been the purchaser and holder of the certificate. The issues formed by general denial to relatrix’s complaint were tried by the court. The facts were found specially and a judgment was rendered for appellee on a conclusion of 'law favorable to him on the facts found, to the effect that relatrix was not entitled to a deed on the certificate. The errors well assigned by appellant are that the court erred in its conclusion of law and in overruling appellant’s motion for a new trial. 1. The court found that two of the lots in question had been redeemed from the sale prior to the expiration of the two years from the date of the sale or, to be specific, a little more than two months after the sale. It was also found by the court that on the same day that this was done the county auditor declared the sale of the other lot void for the reason that the taxes thereon had been paid and that there was no delinquency at the time of the sale and drew a county order to relator for the purchase money on the void sale and the interest provided by statute in such cases. It being the settled rule that for the purpose of considering the correctness of the conclusions of law ex [174] ceptions thereto admit that the facts are correctly and fully found, it must follow that the court did not err in concluding as a matter of law that relatrix was not entitled to a deed on her certificate. §10366 Bums 1914, Acts 1891 p. 199, §192, authorizes a redemption at any time during two years from the sale; and §10386 Burns 1914, Acts 1891 p. 199, §212, provides that whenever the county auditor shall discover, prior to the conveyance of any lands sold for taxes, that the sale was, for any cause whatever, invalid, he shall not convey such lands hut the purchase money and the- interest thereon shall be refunded out of the county treasury to the purchaser. 2. 3. But counsel insist with much earnestness that these findings which show a redemption of two lots and that the sale of the other was declared void by the auditor are not sustained by the evidence. The most that can be said of this claim of counsel is that the evidence shows that there was some irregularity both in the matter of the redemption and in the releasing of the other from sale on .the ground that the sale as to it was void. It does appear however that relatrix was given the opportunity to receive substantially all the money to which she was entitled. And it is also very clear that for the auditor to have given relatrix a deed on the certificate would have involved the rights of the owners of the lots. Hence it follows that it was within the discretion of the trial court to deny to relatrix the mandate asked. The issuing of the writ of mandate is generally considered to rest in the sound discretion of the trial court under well recognized rules. 26 Cyc. 144; State, ex rel. v. Board, etc. (1904), 162 Ind. 580, 603, 68 N. E. 295, 70 N. E. 373, 984. The writ will not, as a general rule, be awarded when it is made apparent that the rights of third persons, not parties to the action are involved in the thing sought to be compelled. High, Extr. Leg. Rem. (3d ed.) §39; 2 Spelling, Injunctions (2d ed.) §1371; 26 Cyc. 149; Ex parte DuBose (1875), 54 Ala. 278; [175] Farmers, etc., Co. v. People, ex rel. (1896), 8 Colo. App. 246, 45 Pac. 543; Territory, ex rel. v. Perea (1892), 6 N. Mex. 531, 30 Pac. 928; State, ex rel. v. Trustees (1884), 20 Fla. 402; Taber v. Commissioner (1866), 29 Tex. 508; Commissioner v. Smith (1849), 5 Tex. 471; Smith v. Hodgson (1907), 129 Ga. 494, 59 S. E. 272; United States v. Edmunds (1867), 72 U. S. 563, 18 L. Ed. 692. See, also, People, ex rel. v. Chapin (1886), 103 N. Y. 635, 8 N. E. 368; People, ex rel. v. Adam (1854), 3 Mich. *427. The judgment is affirmed. Note. — Reported in 108 N. E. 513. As to who may purchase at tax sale and enforce title, see 15 Am. Dec. 684 ; 75 Am. St. 229. See, also, under (1) 37 Cyc. 1422, 1423; (2) 37 Cyc. 1427; (3) 26 Cye. 143, 149.