Frances M. Kroh brought this action “to quiet her title to lot No. 41, in the city of Kokomo. She •alleges in her complaint, that the treasurer of Howard county «old part of the lot on the 9th day of February, 1880, for -$69.37, the amount of taxes due on the lot and on certain personal property owned by her at and prior to that time, and that at the time the lot was sold she was the owner of an amount of personal property, which she describes, more than ■sufficient to pay the taxes, and which was available for that purpose; that the treasurer, before selling the lot, did not demand, levy on, nor sell any of the personal property, and that ¡the sale was therefore illegal.
It is further averred that on the 9th day of February, 1882, ■she being a married woman-, and before any deed was made to the purchaser at such sale, she tendered to the county treasurer in payment of the tax, interest, penalty and costs, the ..sum of $73, which was more than the amount due, and that she has at all times been ready to pay the amount, and that she brings that sum into court for the defendant, who, it is .averred, holds a deed under the alleged illegal tax sale.
In a second paragraph she alleges that the treasurer of the ■¡city of Kokomo made a like illegal sale, and that she made •a like tender to him before a deed was issued, of the amount •of taxes, interest, etc., and that the defendant has title under that sale also, and that she was, during all the time, and still .is, a married woman.
£)n-the hearing, the court quieted the plaintiff’s title, sub
Conceding the invalidity of the tax sale upon the facts; stated in the complaint, and admitting Mrs. Kroh’s right to-redeem, counsel for the insurance company contend that the-redemption must have been made under section 208, 1 R. S„ 1876, p. 121, which was in force at the time the sale occurred,, and having failed so to redeem it is contended the company was-entitled to enforce its lien under section 257 of the same statute, giving interest at 25 per cent. 1 R. S. 1876, p. 129.
The sale of the lot, having been made while the owner had-, available personal property subject to distress and sale, was illegal and void. McWhinney v. Brinker, 64 Ind. 360; Morrison v. Bank of Commerce, 81 Ind. 335, and cases cited.
Section 227 of the statute above referred to made it the-duty of the auditor upon discovering that a tax sale of real: estate was void for any reason to decline to make a conveyance for the land, and provided that the purchase-money should be refunded to the purchaser, with interest, on the. order of the auditor.
Section 254 provided, in substance, that no sale of real estate for the non-payment of taxes should be invalid, “unless;, it shall be made to appear that all legal taxes assessed upon such real estate, together with all legal costs and charges, thereon, were tendered to the officer authorized to receive-such redemption money, within the time limited by law for the redemption thereof.”
Under these statutes, where an illegal sale of land had been-, made, no authority existed in the auditor to make a deed, but. unless the persons whose lands were sold within the time allowed by law for redemption, paid, or offered to pay, all legaL taxes, with all legal costs and charges thereon, the presumption would be indulged that the sale was legal, and a deed: might be made.
Where, however, as in this case, an illegal sale was made, and the plaintiff, within the time prescribed by section 254, complied with its provisions by tendering the amount of the taxes legally assessed, together with the legal costs and charges, the presumption of legality was destroyed, and no authority existed thereafter to make a deed for her lot, if the sale was in fact illegal.
As the complaint avers that the amount tendered was more than the amount of the taxes assessed against the lot, together with the costs, interest and charges thereon, and as it is averred that the tender was kept good and the money brought into court to be at its disposal, the complaint was sufficient, and the demurrer was correctly overruled.
We think the finding and judgment were more favorable than the appellant had a right to ask, and that there was, therefore, no error in overruling the motion for a new trial.
Judgment affirmed, with costs.