On Petition fob a Reheabing.
Best, C.The appellants, in support of their petition for a rehearing, insist that a county auditor has no authority to execute a deed for the lands of an infant sold for taxes, until the expiration of two years from the time such infant attains full age, and, as such deed will create a cloud upon the title,, the complaint in this case was sufficient to enjoin the execution of such deed.
The statute provides that the owner of any lands sold for taxes may redeem the same at any time within two years from the last day of sale, and if uo person redeems the same within said time, the auditor of the county in which such sale took place, at the expiration pf such time, upon the production of the certificate of purchase, shall execute a conveyance of such real estate to the purchaser, his heirs or assigns. 1 R. S. 1876, pp. 121, 122,- sections 208 and 222.
These sections of the statute are general, and apply alike *569to all persons and to all sales. The first section enables all persons, whether laboring under disabilities or not, to redeem from such sales within two years, and the last requires the auditor to execute a deed, at the expiration of such time, for all land sold for taxes, notwithstanding the fact that the owner may be an infant.
It is true, that such persons are not required to redeem within such time, but may do so at any time within two years after the removal of their disability. 1 E. S. 1876, p. 121, section 210.
The right to redeem may be exercised by such persons after the execution of a deed, and as the statute requires the auditor to make a deed for all lands after the expiration of two years from the sale, the mere fact that some persons may thereafter redeem does not deprive the auditor of the power to make the deed. The statute applies alike to all sales and makes no other provision for the conveyance of lands owned by persons under disabilities. No exception in favor of such persons is created by the statute and none can be by construction. Aside from this the auditor has no means of determining whether the owner of a given parcel of land sold for taxes is under disability, or when such disability ceases to exist. These are questions of fact not disclosed by the record and can only be determined by extrinsic testimony. Nor does the statute confer any authority upon him to determine them. It simply requires him to execute a conveyance to the purchaser, his heirs and assigns, after the expiration of two years from the last day of sale upon the production of the certificate, and, as this requirement embraces all sales, it necessarily includes the conveyance of lands owned by persons under disabilities. If so, the auditor can not be enjoined from the execution of a deed of conveyance unless the lands are redeemed from such sale. This may be done, and if the owner does not choose to do so within two years, he can not invoke the aid of a court of equity to enjoin the auditor from discharging a duty imposed upon him by a *570plain requirement of the statute. This is no hardship, as the right to redeem against all persons claiming through such sale is unaffected by such conveyance.
Filed Nov. 13, 1884.In Ethel v. Batchelder, 90 Ind. 520, a case where a married woman, whose land had been sold and conveyed for the nonpayment of taxes, sought to quiet her title on the ground that the rents and profits received by the purchaser, who was in possession, exceeded the taxes, interest and penalties, it was incidentally said that the deed executed during coverture was improvidently issued, but as the decision did not turn upon such point, and as the conclusion reached is in entire harmony with the conclusion here reached, that case can not be deemed in conflict with this one. The petition should, therefore, be overruled.
Peb Cubiam. -'The petition is overruled.