Page:North Dakota Reports (vol. 1).pdf/398

 State of Nebraska having developed the precise provisions adopted by the legislature of the Territory of Dakota from the Nebraska statute.

Section 62, chap. 28, Political Code (1620 Comp. Laws), providing for the sale of land for taxes as originally adopted by the territorial legislature, directed the treasurer to sell “all lands on which taxes levied for the preceding year still remain unpaid.”

Prior to the adoption of the Revised Codes of 1877 this stattute was amended so as to make it read as follows: “All lands, town lots or other real property which shall be liable for taxes of any description for the preceding year or years, and which shall remain due and unpaid.”

The form of deed provided by § 1639 of the Comp. Laws is the identical form prescribed by § 72 of the Revised Laws of Nebraska, 1886, and both recite that the lands conveyed are legally liable to taxation.

Section 78, chap. 28, Political Code, (§ 1629, Comp. Laws), in the Iowa Code of 1851, in the exact form in which it is found in the Comp. Laws, (except as to amount to be paid by the county) and in which form it was adopted in 1858 by the Nebraska Legislature, and in 1868, by the legislature of the Territory of Dakota. Since its adoption by the legislature of the Territory of Dakota, and in 1871 it was amended by the Nebraska legislature by adding the words, “or other officer” to the word treasurer, making it apply to the mistake or wrongful act, not only of the treasurer but of any other officer of the county.

These changes could not affect the purchaser, and must be construed as having been made for his benefit, and indicating an intention more fully to protect the title of the purchaser at tax-sale, and to furnish such purchaser assurances upon which he could rely—that only lands liable for taxes at the time of the sale, should be offered for sale.

Whatever respondent’s right, in the absence of a statute, § 78, chap. 28, Political Code, (§ 1629 Comp. Laws) is clearly applicable to the case at bar, and justifies a recovery in this action. This statute is cumulative and not exclusive. Norton v.-Supervisors of Rock County, 13 Wis. 684 (star p. 612.)

The act of the treasurer in selling the land was wrongful; it