purchase is ordinarily for purposes of speculation, rather han for actual occupation.1 By the statutes of many states, the sale is of an estate in fee simple in the land, free from any incumbrances, and without reference to the estate or interest belonging to the particular person against whom the tax was assessed,—that is, the proceeding for sale is in effect against the land, and not against any particular owner thereof; and if one interested in the land, though not bound to pay the taxes as against the person in possession, desires to protect his interest, he must pay the taxes, or redeem from the tax sale. So, a remainderman or lienor may, by the failure of the owner in possession to pay the taxes, be divested of all interest in the land. In some states, however, or under particular acts, the taxes are not enforceable against the entire interest in the land, but against the interest only of the person against whom the taxes are assessed, in which case the interests of other owners or of lienors are not divested by the sale. The statute usually, if not always, names a certain period, varying from six months to three years, within which the owner of the land may redeem from the sale by the payment to the purchaser of the purchase money, interest, and costs, in addition to which he is ordinarily required to pay a penalty, calculated in interest at a high rate. The purchaser has, until the execution of a conveyance or "deed" by the officer making the sale, neither a legal nor equitable title to the land, but rather a lien thereon for the amount of the purchase money, interest, costs, and penalty. He is usually entitled to the deed upon the expiration of the 1 An admirable sketch of the uncertainties involved in a tax title is contained in 2 Dembitz, Land Titles, p. 1323 et seq. The standard works upon the very extensive subject of tax sales are those by Robert S. Blackwell, the fifth edition of which is well edited by Frank Parsons, Esq., and by Henry C. Black, Esq. time for redemption, and not before, and the statutes fre quently impose certain formalities as conditions precedent to his obtaining the deed. The requirements of the statute as to the form of the deed, which are frequently most de tailed and precise in character, and often include full recitals of the antecedent proceedings, must be strictly followed, and the deed must be executed in strict compliance with the statute in order to vest the title in the purchaser. 468. Judgment for taxes. In some states the legislature has provided that the sale of land for taxes shall be preceded by the rendition of a judgment determining the amount of the taxes due. The proceeding to obtain such a judgment is in the nature of a proceeding in rem against the land, rather than in personam against the owner of the land, and, consequently, personal service of notice of the proceeding is not regarded as a prerequisite to the judgment, constructive service by publication being authorized. Any objections to the validity of the tax or to the assessment must be made by way of defense to, the application for judgment, and the judgment is, until reversed, regarded as conclusive of the right to make the sale, according to numerous decisions, even though the taxes were actually paid. 469. Forfeiture to state. The statute occasionally provides that, upon nonpayment of taxes due the state, the land, instead of being sold, shall be forfeited to the state. Whether such a forfeiture is valid if not preceded by a judicial finding that a default in the payment of taxes exists is a question open to very consider able doubt. Cooley, Taxation, 461 et seq. 470. Remedial legislation. The legislatures of the various states have, particularly in more recent years, frequently passed curative statutes for the purpose of validating tax sales previously made, as well as those thereafter to be made. These acts are regarded as valid in so far as they undertake to validate the proceedings in respect to a particular step therein with which the legislature could have dispensed in the first place, but no further. The same end of curing defective proceedings has frequently been attained by the passage of acts providing that the deed to the purchaser shall be prima facie evidence of the regularity of the proceedings, and it has sometimes been made even conclusive evidence in this respect, this latter legislation being valid, however, as are other curative acts, in regard only to matters which could have been previously dispensed with. Another mode in which the legislatures have undertaken to add to the security of the purchaser at a tax sale is by "short" statutes of limitation in connection with tax titles, requiring the original owner to proceed to recover the land from the purchaser within a certain number of years, less than that within which actions for land must ordinarily be brought. These statutes have usually, like the other statutes having the same purpose in view, been regarded as applicable only when the jurisdictional requirements of a valid sale were present, and as insufficient to validate a sale which is void for want of jurisdiction on the part of the officials to make the sale. (1067) CHAPTER APPROPRIATION UNDER EMINENT DOMAIN. § 471. The power to appropriate. 473. Mode of appropriation. 474. Time of passing of title. Under its power of eminent domain the state may appropriate private property, including land, or particular interests therein, for public use, upon payment of just compensation. The power may be exercised by the state or any corporation or person to whom it delegates the power. The title to the land appropriated does not usually pass till payment of the compensation therefor, but the statute may provide that it shall do so, in the absence of any explicit constitutional prohibition. 1.471. The power to appropriate. The power of the state to appropriate property for public use, upon payment of just compensation, may be exercised directly by the state itself, or the state may, in the exercise of the power, select particular agencies, either natural persons or corporations, on whom it confers the right to take private property for public use. Thus, the legislature may, and ordinarily does, authorize municipal corporations to appropriate or "condemn" land for street and other municipal purposes, and so it may authorize a railroad or irrigation. company, or other private corporation, to appropriate property for its use, upon payment of just compensation, provided only the use for which it is appropriated is of a public character. This grant by the legislature of the right to ex ercise the power is frequently by means of a general statute operating in favor of the corporations of a particular class which may desire to exercise the right.1 The result of the exercise of the power in connection with land is to transfer to the state, or to the corporate body to which the power is delegated by the state, all or some of the rights in particular land previously vested in a particular individual, or in a number of individuals. 472. Rights subject to appropriation. There may be an appropriation of the rights of ownership in a particular piece of land, the entire interest of the former owner thus passing to the appropriator, or a right merely to use the land for the particular public purpose may be acquired. Whether there is an appropriation of the ownership of the land is usually a question of the construction of the statute under which the land is condemned, in connection with any constitutional restrictions upon the power. In the case of a taking by a private corporation there is usually a presumption that the ownership, or, as it is ordinarily expressed, the "fee," does not pass, and, unless the statute explicitly authorizes the taking of a fee, or this is necessary for the particular use, it is usually considered that a right of user only is taken by even a public corporation.2 Accordingly a railroad company ordinarily acquires by condemnation merely an easement in the land, and, in the case of land taken for highway purposes, the public frequently acquires merely the right to use the land for such purposes. The rights of the owner of land may be infringed, not by the actual taking of the land for a particular public purpose, but by the fact that the utilization of neighboring land 1 Randolph, Eminent Domain, §§ 102-106; 1 Lewis, Eminent Domain, § 243. 2 Randolph, Eminent Domain, § 205; 1 Lewis, Eminent Domain, $278. |