McRee v. Swalm

Whitfield, C. J., delivered the opinion of the court. After a careful consideration, we are of the opinion, clearly, that a deputy sheriff is, virtute oficii, also deputy tax collector, and that Applewhite was in this case a defacto deputy tax collector. Under code, §§ 4143, 4112, 3079, 3065, we think it is clear that Applewhite was de facto deputy tax collector, and was duly authorized to make this sale. The deed is in proper form. See Whitford v. Lynch, 10 Kan., 180; Gilkey v. Cook, 60 Wis., 133 (18 N. W. 639). Black on Tax Titles states : Where the local statute authorizes the deputy county clerk to perform all the duties of the county clerk during the absence or disability of the latter, or during a vacancy in his office, and the deputy, under these circumstances, is called upon to execute a tax deed, it is proper for him to execute it in his own name, by describing himself and signing it as deputy, and without naming the clerk, as he derives his authority, not from his principal, but from the law, which clothes him with all the power of the clerk in the given case, or, rather, makes him the officer to perform that duty for the occasion. ’ ’ In the particular case the deed recites that it was made by Chas. McNair, but it is signed, £ £Chas. McNair, tax collector, by R. C. Applewhite, deputy.” If the tax collector’s name had not been mentioned, since he was dead, and the deputy acted, not as agent for a principal, but solely by virtue of the power con [684] ferred by the statute (§ 3079, code 1892), the deed would have been perfectly good; and so it is here, in the form we have it, because it is perfectly manifest that the sale and deed were made by the deputy. The opinion of Cole, C. J., in Gilkey v. Cook, 60 Wis., 136, 137 (18 N. W., 639, 640), explains the distinction between an. act performed by an agent on behalf of his principal, and an act performed by a deputy deriving his power from the law to do the act in question : “In the one case the agent derives his authority to act from his principal, for whom he acts ; in the other, the deputy derives his authority from the law, which clothes him with all power of the tax collector in the given case.” Whether the deed be made in the name of the tax collector, in the body of the deed, and signed with the tax collector’s name by the deputy tax collector, or whether the deputy tax collector’s name alone appears throughout, in either case the deed is good, as stated by Judge Cole, “since in either form it plainly appears that the deputy, in the exercise of a power vested in him by law, executed the deed, and that the tax collector did not. ’ ’ The only point before us is as to the validity of this deed, and that is all we now decide. The demurrer to the cross-bill was properly overruled. Affirmed and remanded, with leave to answer the cross-hill in thirty days from the filing of the mandate •in the court helow.