Tacey v. Irwin

ERROR to the Circuit Court for the Eastern District of Virginia; the case as found by that court being thus:

Under an act of Congress approved June 7th, 1862, and entitled 'An act for the collection of the direct tax in insurrectionary districts,' &c., certain direct taxes which had been laid by former law, were specifically charged on every parcel of land in the rebellious States, according to divisions and valuations in the act prescribed. And in default of payment of the tax the statute ordered the land to be advertised for sale and sold. The act, however, allowed the owner or owners of the land to pay the tax to certain tax commissioners mentioned, and to take a certificate therefor, by virtue of which the lands should be discharged of the tax.

In 1864, one Irwin owned a piece of land, subject to this statute, in Alexandria, Virginia, he himself being away. The taxes on it being unpaid, the commissioners gave notice that they would be at then office in Alexandria at certain times named, to receive the direct tax assessed and fixed by law on the lots and tracts of land in Alexandria, under and by virtue of the act of Congress abovementioned. But the commissioners adopted a rule not to receive the taxes due on property advertised for sale, unless tendered by the owner in person. This rule was adopted in pursuance of instructions from some officer of the Treasury Department, and was so rigidly enforced that neither friend, relative, nor agent was allowed to pay for the absent owner; their applications to pay and save the property from sale being uniformly refused by the commissioners, under the operations of the rule in question. After the premises belonging to Irwin were advertised for sale, one of his relatives went to the office of the commissioners to see after the payment of the tax on the property, but made no formal offer to pay because it was in effect waived by the commissioners; they declining to recognize any tender, unless made by the owner in person. The land was accordingly sold by the commissioners as land on which the taxes had not been paid, and was bought by one Tacey. Hereupon Irwin brought suit against him to recover it, and by judgment of the court upon the preceding case, did recover it. To reverse that judgment this writ of erorr was taken.

Mr. Willoughby, in support of the ruling below, relied on Bennett v. Hunter, where a tenant of the owner went and tendered payment of the tax on certain lands sold, the owner being away, which tender was held by this court in the case cited to be sufficient.

Mr. S. F. Beach, contra, sought to distinguish this case from that, since here there had been no tender at all; and no specific refusal.

Mr. Justice DAVIS delivered the opinion of the court.