Page:North Dakota Reports (vol. 1).pdf/144

 upon 4 tax sale based upon a tax in part absolutely void, for the want of an assessment. In the absence of a statute regulating the subject, a court of equity would not grant the relief prayed for by plaintiff until he has paid or tendered the full amount of legal taxes, to-wit: the county taxes of 1885, together with the amount that has accumulated thereon since said taxes became delinquent. But we hold that this case falls within the provisions of § 1643 of the Compiled Laws, and, consequently, in lieu of requiring the plaintiff to pay in money the amount due as a condition of granting the relief prayed, that it was the duty of the trial court, under the evidence, to have entered a judgment against the plaintiff, and in favor of the New England Investment Company, for the sum legally accruing upon the county taxes; that said § 1643 was enacted for the better protection of the public revenue; and that, in a case coming within its provisions, said section is mandatory upon the court, and it becomes its duty to enter up judgment for the amount of the legal tax, and such judgment in no manner depends upon the request of either party to the action. No such judgment was entered in this case by the trial court, but a decree was entered granting the relief prayed for unconditionally. The judgment of the district court was in part proper, but in other respects improper, and hence should be, and is hereby reversed; and the district court is directed to enter such judgment of reversal, and said court is further directed to enter a judgment against the plaintiff as trustee, and in favor of the New England Investment Company, for amount due on the county tax of 1885, said amount to be ascertained by reference, or in such manner as to said court may seem proper. And, in computing said amount, the said county tax, by which we include the entire tax levied by the county commissioners, should be regarded as delinquent and unpaid from and after the first Monday in February, 1886, and the interest and penalties thereon should be computed thereon from that time to the date of such judgment as provided by statute in cases of delinquent taxes. And said court is further directed to enter a judgment canceling the tax certificates in question, and forever enjoining the county treasurer of Ramsey county, and his successors in office, from executing any tax deed or deeds, based