ÆäÀÌÁö À̹ÌÁö
PDF
ePub

CHAPTER XXIX.

TRANSFER FOR NONPAYMENT OF TAXES

467. Character of title acquired.

468. Judgment for taxes.

469. Forfeiture to state.

470. Remedial legislation.

By statutory provision, land is usually liable to be sold in case of nonpayment of taxes thereon. The sale is, under some statutes, of the land without reference to the particular estates or interests therein, and, under others, of the estate or interest only of the person against whom the tax is assessed.

The proceedings leading up to the sale, including the levy and assessment of the taxes, must, for the most part, be strictly followed. The title does not pass till a deed is made to the purchaser by the officer making the sale, and such deed is not made until a certain period, named in the statute, has elapsed, during which any person interested in the land may redeem from the sale. In some states the tax sale is required to be preceded by a judgment determining the amount of taxes due. In some states, land may be forfeited directly to the state for nonpayment of taxes.

In many states the statutes undertake to render a sale for taxes valid in spite of irregularities in the proceedings. Such statutes are usually valid only as applied to such parts of the proceeding as could have been previously dispensed with by statute.

467. Character of title acquired.

The payment of taxes on land is in this country usually enforced by a summary sale of the land, conducted by the tax collector or some other ministerial officer.

1

The power to ell lands for nonpayment of taxes is a purely statutory powe, and it has always been held that the statutory requirement as to the mode of making sale must be strictly complied with, and that, moreover, since the power to sell exists only in case there are valid taxes, which are unpaid, no title will ass unless the tax was levied and assessed in accordance with law. Tax sales have accordingly been held to be invalid in particular cases for want of a valid assessment or valuation of the property, duly verified by the proper officers, and approved by the legal reviewing authority or "board of equalization," defects in the levy of the tax, defects in the warr nt issued to the collector for the collection of the tax, failure to return the list of delinquent taxes, noncompliance with the various requirements as to the mode of advertising the sale, failure to comply with the statute, and also with the advertisement, as to the conduct of the sale, failure to sell all the land, though a part brings enough to pay the taxes. Furthermore, the statutory requirements as to the return of the sale by the officer must be complied with, and he must make a conveyance to the purchaser in strict conformity to the statute. The sale is also invalid if the tax was unconstitutional, or not properly levied by the legislature or the municipal authorities, or if the land was exempt, or the taxes had been paid before the sale. In view of these many possible defects in the proceedings, as well as others which might be mentioned, it is not strange that titles based on tax sales are generally regarded as of most questionable soundness, and, though this condition of things has been to some extent removed by legislation, hereafter referred to, the possibilities of failure of title through de fects in the proceedings are still such that land, when sold for taxes, rarely, if ever, brings its actual value, and its (1064)

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)

« ÀÌÀü°è¼Ó »