Burroughs v. Vance

Woods, C. J., delivered the opinion of the court. While the appellee bid off the lands at the tax collector’s sale on March 5, 1894, no deed was made to him by the collector until March 31, 1894. In the absence of any evidence as to when the money bid by him for the lands was paid, we assume that he secured his tax deed when he made good his bid by pay [700] ing the amount of it to the collector. Three weeks, then, before the collector received the purchase money and made his deed, and thereby completed the sale, the appellant, Burroughs, had paid the taxes due, and obtained the tax collector’s receipt in the form prescribed by law. So long as the sale to appel-lee was in fieri, the sheriff had power to deal further with the lands. He might have sold again to a stranger, or he might have permitted the owner to pay his taxes, including costs and damages. Looking at this transaction in a light most favorable to the collector, on the record before us, we assume that the collector elected to pursue the latter course, and four days after the sale, and twenty-one days before the intending purchaser paid his bid, and twenty-one days before the collector executed the deed to the bidder, and while the collector had the undoubted power to resell, he permitted the owner to pay in full. That there was fraud or gross mistake in the sale to appellee on March 5, is indisputable. The very check of $1,178, given to the collector by Burroughs, the appellant, was accepted and treated and used by the tax collector in payment of all taxes on more than 13,000 acres of appellant’s land, and yet on this particular 570 or 580 acres involved in this litigation, that very same check was not accepted and used as payment by the tax collector. The whole amount of the check was promptly paid, and all taxes due on all of appellant’s 14,000 acres of land, including the 570 acres embraced in this suit, was entered on the collector’s cash book as paid, and was actually paid by him into the proper treasury. On a remand of this case to the court below, if appellant shall desire to amend his answer so as to charge fraud or mistake in the sale to appellee, he should be allowed to do so, with opportunity given also to take further evidence to support his answer. In the absence of any proof that appellee paid the amount of his bid before appellant actually paid the taxes due in money' [701] and obtained the proper receipt, the court below should not have excluded appellant’s evidence. Reversed.