Page:North Dakota Reports (vol. 1).pdf/420

 court, undoubtedly correct, held that it was. This case was followed by Hurley v. Powell, 31 Iowa, 64; Rhodes v. Sexton, 33 Iowa, 540; Madson v. Sexton, 37 Iowa, 562; and Railroad Co. v. Carroll Co., 41 Iowa, 153—all involving the same point, and decided in the same way. But the learned supreme court of Iowa, in Parker v. Sexton, supra, after quoting the section that is substantially the same as our § 1621, says: “Now, it will be observed that by the provisions of this section the tax-warrant requires the treasurer to collect, and is authority for the collection of the taxes in the tax-list contained. But it does not authorize him to collect taxes therein named by distress and sale of personal property, nor to sell real estate; nor does it exempt him from liability for illegal or erroneous taxes collected by him. In short, the tax-list and warrant, as provided by this section, becomes simply the authority to collect or receive the taxes: nothing more.” This language does not meet our approval as applied to our statute. When the warrant requires the treasurer to “collect the taxes therein levied according to law,” we think it does not simply mean to receive the taxes therein levied according to law, but that it requires the treasurer, if necessary, to use all the instrumentalities of the law to enforce the collection of the taxes. But as the treasurer, in selling the lands in question, acted strictly in accordance with law, and within the terms of his warrant, regular and fair on its face, with no inherent indications of infirmity, he is fully protected, unless the peculiar, and not altogether perspicuous, language of the statute imposes a liability contrary to the general rules governing such cases.

The statute, already quoted in full, says: “Where, by mistake or wrongful act of the treasurer, land has been sold on which no tax was due at the time,” etc. Respondent contends that every sale of land on which no tax is due is a legal wrong—a wrong for which there is a remedy in a court of equity—and that, as the sale is the act of the treasurer, it is in every instance his wrongful act; that in an action brought to enjoin such sale, or to cancel such certificates of sale, the treasurer is a necessary party, and that judgment will in such action be rendered against him for costs, as a consequence of his wrongful act; that it would be a strange anomaly if a court of equity