
    John Doe, on demise of Andrew Hodge, Jr. vs. Robert Wilson.
    Under the act of 1841, “ to provide for the revenue of the state,” it is the duty of the tax collector, in making sales under the thirty-eighth section of the act, to offer some one particular eighth of land for sale, designating the particular eighth so offered, and if that will not bring the amount of taxes due, the collector is to designate some other particular eighth, and . offer that and the first eighth offered together ; and if the two thus offered together will not sell for the amount of taxes due, he is to offer a third designated eighth, and so on, until he has offered a sufficient quantity to bring the amount of taxes due.
    But if he sell without designating the particular eighth first offered, and the other eighths as they are respectively added, the sale will be invalid.
    Mr. Chief Justice Sharkey dissented, and held that the true mode of selling under the act, was for the collector to offer a particular eighth of land, and sell that, and if it would not sell for enough, to sell another, and if the proceeds of the two sales were not sufficient to pay the taxes due, to go on selling an eighth at a time, until he had sold enough to pay the taxes due ; and if any one eighth will not sell at all, he must pass to another eighth that will sell.
    In error from the circuit court of Lafayette county; Hon. Francis M. Rogers, judge.
    John Doe, on the demise of Andrew Hodge, Jr., sued Richard Roe, that is, Robert Wilson, for the north-west quarter of section number nineteen, township number ten, and range number four, west, in that county.
    On the trial, the lessor of the plaintiff having read a patent from the general government to himself to the land in- controversy, and proved the possession in Wilson, closed his case. The defendant then offered to read the tax collector’s deed to John F. Cushman, dated the 15th of April,',1844, conveying the land in controversy to him for one dollar and forty-seven cents, being the taxes of 1843. The plaintiff objected to this deed: 1. Because the defendant showed no order of court for the sale. 2. Because the deed conveyed more than one1 eighth of a section. The court overruled the objection, and the defendant closed his testimony.
    The tax collector then proved for plaintiff, that he sold the land, as collector, to Cushman; his usual custom in offering land for sale for taxes was this, he said, “Will any body give the taxes, costs and charges due on this section, half or quarter of land, for less than eighty acres'?” If no one bid the taxes, costs, and charges, he then said, “Will any one bid the taxes, costs, and charges due on this land for eighty acres?” If no one bid, he then said, “ Will no one bid the taxes, costs, and charges on this tract of land for one quarter section ? ” and so on of more land, until he got the taxes, costs, and charges bid; that he offered the land in dispute in that way; and when he offered half of this quarter, to wit, eighty acres, as was his custom, he received no bid therefor, and not until he offered the whole quarter, when John F. Cushman became the purchaser by bidding for the whole quarter section the amount of tax, costs, and charges, being one dollar and forty-seven cents, when he struck it off to him, and executed the deed to him; that he did not in this, or any other instance, offer the land for what it would bring, but fixed the amount himself of the bid he would receive, and that was the amount of taxes, costs, and charges due; if no one bid that, he offered more until some one did bid it.
    The court refused to instruct the jury, that, to constitute a valid tax sale, the land must be struck off in quantities of one eighth; but instructed the jury, that if the collector did not sell a quarter section until an eighth had been offered for the amount due, and no one bid the amount due for an eighth, the sale of the quarter was legal; and that the tax deed was prima facie evidence that the tax collector performed all things required by law before selling the same, and that he was authorized by law to sell.
    The jury found for defendant; the plaintiff moved for <£ new trial, and, upon its refusal, sued out this writ of error.
    
      
      Howry and Hayes, for plaintiff in error,
    Cited Stead’s Ex’r v. Course, 4 Craneh, 403; Williams v. Pey-ton, 4 Wheat. 77; Thatcher v. Powell, 6 lb. 119; Hutch. Code, 196, Act 1S41, p. 68, sec. 38; lb. 1844, p. 81, sec. 55; lb. 1843, p. 42, sec. 6; lb. 1844, p. 70, sec. 28; Hutch. Code, 176.
    
      J. F. Cushman, for defendant in error,
    Cited Hutch. Code, 200, 201, sec. 5; Gi-aves v. Hayden, 2 Litt. Rep, 61; Hutch. Code, 196, sec. 57; 14 Mass. R. 143.
   Mr. Chief Justice ShaRKey

delivered the following opinion.

The plaintiff brought ejectment for a quarter section of land, and introduced and relied on a patent from the United States. The defendant introduced and relied upon the deed of the tax collector, dated April, 1844, the quarter section of land having been sold for the taxes due in 1843, under the law as it then stood. The statute makes such deed prima facie evidence that the tax collector proceeded regularly in making the sale by a due performance of all preliminary steps. It became, therefore, incumbent on the plaintiff to rebut and overturn the prima, facie title of the defendant, by proof that the collector did not comply with the directions of the law in making the sale. To do this he introduced the collector who made the sale, who stated that his usual custom in selling for taxes was to offer the land, and ask, Will any one pay the whole of the taxes due for a lot of eighty acres 1 If no one bid the taxes due, then he asked, Will any pay the taxes due for a quarter section 'l If no bid was made then, he proceeded in the same way until the whole tract was offered together. He stated that he had sold this quarter section in that Avay; that is, by asking, Will any one pay the taxes, costs, and charges for one eighth or eighty acres'? and, as no one bid, the whole quarter section was put up and sold. This, it is contended, was irregular, and vitiated the sale, and we are to determine whether the objection is well taken.

The question raised involves a construction of portions of the several revenue laws passed in 1841, 1842 and 1843. The act of 1841 provides, that the collector, in making sale of land for taxes, “shall not sell in any one lot more than one eighth of a section; but if one lot will not sell for the amount of taxes due, and-the costs and charges that shall have accrued, as many lots of that quantity may be sold as will be sufficient to pay the amount due; and the collector may adjourn any such sale from day to day if necessary.” Acts of 1841, p. 68, sec. 38. Let us understand precisely the scope and meaning of this act before the subsequent acts are noticed. It is impossible to mistake its object in one important particular; it was designed to prevent the sale of more land than was actually necessary; or in other words, to collect the taxes by the sale of as little as possible, observing the legal subdivisions of sections. It is founded in the most obvious principle. Government is established for the benefit of the people, and it should not be permitted so to act by its officers as to produce injustice or oppression. It must protect and not sacrifice their rights; and all its exactions must be made with the least possible encroachments on individual rights. But for this law the collector would have been left free to exercise his discretion; but this law prescribes a limit. It is prohibitory in its character. Let us take the first clause: “The collector shall not sell in any one lot more than an eighth of a section.” Here is the rule for the government of the collector, the command to him, and the limit to his power. He cannot sell a lot of a greater quantity, unless there be some subsequent express authority authorizing the sale of a larger lot. Is there any such authority? I think not. The next clause of the section is, “but if one lot will not sell for the amount of taxes due, and the costs and charges that shall have accrued, as many lots of that quantity may be sold as will be sufficient to pay the amount due.” Now the question is, does this latter .clause authorize the collector, on any contingency, to increase the'size of the lot he offers for sale? If one lot will not sell, can he add that to another lot, and sell both together, and if so, does he sell a lot of a greater quantity than “ one eighth of a section ” or not ? It seems, to me most obvious that by doing so he sells a lot of a greater, quantity than one eighth of a section, and thus violates the law. In the frame of this section the workings of the legislative mind are very easily perceived. First, an unnecessary sacrifice of the property of the citizens must be avoided; therefore, the collector shall sell but a single lot at a time; the balance is saved to the owner. But, secondly, suppose one lot will not sell for enough, then another lot of the same quantity must be sold. It seems manifest, that the legislature supposed that no lot would be offered that would not bring something; hence the law is silent as to the course, to be pursued when the first lot will not sell for any thing. It certainly does not authorize the collector to put it up a second time, and this he does by offering it with the next lot.

We are sometimes aided in the construction of a law by running out its practical operation in a supposed case. If by doing so it becomes manifest that the intention of the legislature may be defeated, a construction which would produce that effect, should not be adopted, if it can well be avoided. Then let us suppose the owner of a section of land to be unable to pay the taxes. One eighth of the section is offered; it does not sell; another is offered with the lilce result, and so on until it comes to the last, which is valuable, and of itself will bring more than the amount of taxes due. The purchaser thus gets the whole section, when one eighth would have paid the tax. Has the collector sold more than was “sufficient to pay the amount due ” in such a case 1 He has; and it seems to me, that under such a construction of the law, the owner will often be deprived of his whole tract, when a small part would have brought enough. Lands sold for taxes generally bring but little. Let it be understood that the law justifies the collector in adding a lot that has failed to sell to the next one offered, and so on until the whole is put up together, and persons desiring to purchase will assuredly not bid until the whole is offered. Under such a course of sale, it is just as easy to get the whole as part; and this will be the effect of selling in that manner. No doubt it has already produced mischief in that way. Suppose the first lot offered should bring one cent or one dollar, when the tax is five dollars, is the collector authorized to put it up with the next lpt because it did not bring enough? If he has a right to increase until he gets one large enough, he has undoubtedly just as much right to add a lot that did not bring enough, as he has to add one that would bring nothing. But such a construction, I suppose, would not be insisted on. The bidder who offers one dollar, is entitled to the land. My construction of the law is, that the collector must sell in lots of one eighth of a section, and in no greater quantities. If one will not sell, another must be offered, and so on, until the whole has been offered in separate lots.

The act of 1842 is supplementary to the act of 1841, but it makes no change in the manner of sale, leaving it as it stood under the act of 1841. By the first section of the act of 1842, if land did not sell for enough to pay the taxes, the collector was authorized to bid it in for the state, for the amount of taxes due thereon. See Acts bf 1842, p. 54, sec. 16. That provision would have had a natural bearing on the sales made under the previous act, but this 16th section seems to have been repealed by the 1st section of the act of 1843. See Acts of 1843, p. 41. This last act was passed to amend the revenue laws, but it makes no change as to the mode of sale prescribed by the act of 1841, except to alter the time and manner of advertising the sale, by directing that the collector should advertise in the same manner that the sheriff advertises a sale under execution.

But the collector committed another error, as I think, in making this sale. He should have designated the particular eighth of a section which was first offered. He cannot sell an undivided interest, and make the purchaser a tenant in common with the original owner; nor can he, by so selling, give the purchaser choice of the tract or parcel purchased. He is directed to sell in separate lots of one eighth of a section, and not an undivided interest.

In these two particulars, I think, the law has been violated, both in letter and spirit, and as a tax collector sells by a naked statute power, any deviation from his authority will vitiate his sale.

I am, therefore, of opinion that the judgment should be reversed.

Mr. Justice Thacheii

delivered the following opinion.

I cannot agree with the chief justice in his interpretation of the 38th section of the statute of 1841, entitled An act to provide for the revenue of the state,” and which provides as follows : “ In making sales of lands, the collector shall not sell in any one lot, more than one eighth of a section, but if one lot will not sell for the amount of taxes due, and the costs and charges that shall have accrued, as many lots of that quantity may be sold, as will be sufficient to pay the amount due; and the collector may adjourn any such sale from day to day, if necessary.”

The first clause of the paragraph provides, that the collector shall not sell, in any one lot, more than one eighth of a section ; the last clause makes an exception to this general provision, which is, if one lot will not sell for the amount of taxes due, and the costs and charges which shall have accrued against the delinquent tax payer, as many lots of that quantity may be sold as will be sufficient to pay the amount due. The latter clause is a clear exception to the first. If a lot of eighty acres be offered, and will not sell for the amount of taxes due from the delinquent tax payer, the collector is not required to strike it off at whatever price may be offered, but it is regarded by the statute as unsold, for its language is, — “ if one lot will not sell for the amount of taxes due, &c.” The use of the auxiliary verb “ will,” always imports futurity, and denotes something not yet had or done, but still certainly to be had or done. The collector must endeavor to discover the desired fact, whether the lot will bring the amount due, and answer the expectation of the first clause by offering it for sale. Had the expression been, — “ if the lot do not sell for the amount of taxes due,” &c., it would then have conveyed the idea of accomplishment, completion, and bringing to an end, — in short, of an actual sale. The use also of the word if,” likewise implies a condition or contingency, and shows that the expectation of a fulfilment of the first clause, is uncertain, and presupposes 'that it may not occur, that the sale of one eighth of a section will liquidate the taxes due. The sentence in effect reads thus: — Give or suppose that this lot, upon being offered for sale, will not bring the amount of taxes due,” &c., “then as many lots of that quantity may be sold,” &c. Now, the first lot cannot be sold at all, unless it be re-oifered with a second lot, and so on with more, until the taxes are made by the sale, which to my mind proves that the lots are to be sold collectively, in the given event, and not separately; for should there be no bid for the first lot, the state’s lien upon it for the taxes would be lost by the other construction.

In this case, the collector, in executing the law, offered one lot of eighty acres, and the bid for this lot not being enough to meet the amount of taxes due the state, he added another, and sold them together at one and the same sale. This course comports with my understanding of the proper mode of proceeding in the sale of land for taxes.

The collector, however, did not designate the particular eighth of a section first offered. By the sale of the two sections, the land sold became designated, yet, I still think the collector should have designated the first lot offered by him; and therefore I agree with the chief justice, that the judgment should be reversed.

Mr. Justice Clayton

delivered the following opinion.

In this case the first inclination of my mind was in favor of the legality of this sale, and the consequent affirmance of the judgment. But the uniform language of the books is, “ that in the case of a naked power not coupled with an interest, the law requires that every prerequisite to the exercise of that power must precede its exercise; that the agent must pursue the power, or his act will not be sustained by it.” Williams v. Peyton, 4 Wheat. 79; Wilson v. Bell, 7 Leigh, 24; 1 Sugden on Powers, 170; City of Natchez v. Minor, 10 S. & M. 264. The power of a tax collector to make a sale, is of that character.

I concur in the construction placed upon this statute by Judge Thacher. I do not think the sale is good, because the sheriff did not designate the particular eighth which he first offered. He could not offer an uncertain lot, because no one could know, in such case, what he was attempting to sell.

But when the part first offered is sufficiently designated, and is not sold, then the part so offered and refused may be added to the next, and so on until a sale is effected. Or the sheriff may offer each subdivision separately.

One mode is not more liable to objection or abuse than the other. Without competition, it must be at the option of the purchaser to bid as little as he pleases, and competition is not likely to spring up at tax sales, when one has scarcely ever been supported. The preliminary requisites should be made so few, and simple and plain, by the legislature, that no one could mistake them.

I concur in the judgment, that the case must be reversed, and remanded for a new trial.

Judgment reversed. ■  