Tacey v. Irwin/Opinion of the Court

The case is not distinguishable in principle from that of Bennett v. Hunter. In that case it was insisted in support of the tax deed, that the right to pay the tax before sale was limited to the owner in person, and could not be exercised by the tenant in possession who had offered to pay it. This position was not sustained, but the court held that the payment of the tax which the act requires to be made by the owner, need not, necessarily, be made by him in person. It is enough, if it be made by any person for him, on the ground that an act done by one for the benefit of another is valid if ratified, either expressly or by implication, and that such ratification will be presumed in furtherance of justice.

It is difficult to see how, upon the case as found here, the sale can be sustained. The law does not require the doing of a nugatory act, as would have been a formal tender of payment, after the action of the commissioners, declining to receive the taxes from any person in behalf of the owner. Bennett v. Hunter decides that the owner has the right to pay, either in person or through any one not disavowed by him, who is willing to act for him. This right the commissioners, by the rule which they established and the uniform practice under it, effectually denied. The friends and agents of absent owners were informed that it was useless to interpose in their behalf, and that unless the owner appeared in person and discharged the tax, the property would be sold. This was equivalent to saying that a regular tender by any other person would be refused. While the law gave the owner the privilege of paying by the hands of another, the commissioners confined the privilege to a payment by the owner himself. This was wrong, and was a denial of the opportunity to pay accorded to the owner by the act, and the lands were, therefore, not delinquent when they were sold.

If an offer in a particular case to pay the tax before sale, to the admission or rejection because not made by the owner in person, renders a subsequent sale by the commissioners void, surely a general rule announced by the commissioners, that in all cases such an offer would be refused, must produce the same effect. Such a rule of necessity dispenses with a regular tender in any case. In the absence of any proof to the contrary, it is a legal presumption that the tax in this case, though not actually offered, would have been offered and paid before sale but for the known refusal of the commissioners to accept any offer when not made by the owner in person.

If so, the commissioners were not authorized to make the sale in controversy, and the judgment must be

AFFIRMED.