I am dissenting to the majority opinion for the reason that I am unable to agree with the statement of facts contained in it.
As I view the evidence in the record, the facts do not bring this case within the principles of law announced in the cases cited, as the owner of the property was not prevented from paying her taxes through the fault, carelessness, mistake, misinformation or miscalculation of the county treasurer, but the property was sold at tax resale because of her disinclination and failure to pay or to tender the full amount required by the statute for redemption.
It was stipulated that the property involved was regularly assessed for taxation for the years 1929 to 1941, inclusive, and was sold at the original tax sale in November, 1930, for the 1929 taxes, and that the notice of the sale was regular and proper; that said property was included in the notice of resale for the year 1942, and that the taxes for the years involved in such resale were indorsed upon the tax certificate by the county treasurer.
The record shows that the property in question was sold at such resale for delinquent taxes for the years 1929, 1930, 1931, 1935, 1937, 1938, and 1939, aggregating, with penalties and costs, the sum of $566.61. She never at any time attempted to pay any portion of the delinquent taxes upon the property for the years 1929, 1930, 1931, or 1935. According to her own testimony, and to her exhibits of a check stub and a copy of a letter dated April 23, 1941, in which she sent a check by registered mail to the county treasurer, it appears that she attempted to pay the one-fifth installment by check in the sum of only $21.19, which she specified as a payment on the 1937, 1938, and 1939 taxes. This check was neither cashed nor credited on the treasurer's records; nor could the treasurer have accepted it because it was grossly inadequate to pay the installment required by the statute to be paid for that year in order to redeem the property. In 1942, after the property had been sold at resale and before the deed was delivered, she came to the treasurer's office and told him that she sent him a check by registered mail in April, 1941, with which to pay that year's installment, and that the property was erroneously advertised and sold at the 1942 resale. The treasurer had no independent recollection of receiving the check and no record of it could be found in his office, and he checked at the post office and found that he had receipted for a registered letter from her at that time, and without further investigation he accepted her statement regarding the matter and withheld delivery of deed to the purchaser's assignee. Thereupon this action was brought to compel delivery of the deed, and at the trial of the cause the evidence failed to support her claim. The evidence affirmatively shows, as above stated, that the check which she claims to have mailed to the county treasurer was grossly inadequate in amount to redeem the property under H. B. 68, ch. 11b, S.L. 1941, which cancels the penalties and costs, and permits the payment of the 1939 and prior delinquent taxes in five equal annual installments, and that the county treasurer was not at fault; but that the fault was all her own in her unwillingness and failure to pay the required amount to redeem the property. She never at any time offered *Page 593 to pay the full amount required to redeem the property, but instead she attempted to secure an adjustment with the board of county commissioners and to settle the claim for $139.16, after the property was sold.
In consideration of the foregoing facts, the trial court undoubtedly was correct in ordering the issuance and delivery of the deed, and the judgment should not be disturbed.