On Petition for a Rehearing.
Mitchell, C. J.In support of the petition for a rehearing in this case, it is earnestly contended that the decision heretofore rendered is in conflict with that made in the later case of Helms v. Wagner, ante, p. 385.
In the case under consideration the tax sale was void, and within the time allowed for redemption, and before a deed was executed by the auditor to the purchaser, the owner of the land tendered to the proper officer the amount of all taxes, interest and costs due. The officer refusing to receive it, the amount so tendered was brought into court to be subject to its order.
In Helms v. Wagner, supra, the tender was not made until after the deed was executed, and until the period for redemption had presumptively expired. The rights of the parties under the different circumstances of the cases are determined *519upon different considerations and under provisions of the law entirely different. What we hold in the principal opinion is, that where an invalid and void sale for taxes has been made, if the land-owner, within the time for redemption and before a deed has been issued to the purchaser, tenders to the proper officer all legal taxes due, together with the interest and charges thereon, a deed subsequently issued will not entitle the purchaser to recover twenty-five per cent, penalty as contended for. If, however, the sale is illegal, and no tender has been made within the proper time and until after the issuance of a deed to the purchaser, then the rights of the parties are to be determined as in Helms v. Wagner, sufra.
It is contended, however, that a redemption from a tax sale, although such sale was illegal and void, can only be had under the provisions of section 6466, E. S. 1881, which provides for the payment of a penalty of twenty-five per cent. Any other construction, it is said, would discourage purchases of property at tax sales, and thus embarrass the State in the collection of taxes.
The effect of a statutory redemption is to relieve the land from a sale which has been made. If none has been made, or if that attempted is absolutely void, there is no sale from which to redeem. The obligation of the taxpayer, until the making of a deed, remained precisely the same after as before such sale, except that he may have incurred the cost of making it, and was bound to pay interest to reimburse the purchaser in addition. Manifestly, section 6466 has reference to ¡sales which are not void. This is apparent when it is considered in connection with section 6486. This section is the same as section 227, referred to in the principal opinion. It provides that the auditor shall not convey lands to the purchaser which have been illegally sold for taxes, but upon ■discovering the fact shall refund the purchase-money, with interest, to the purchaser, and shall charge the amount re*520funded against the land on the delinquent tax list, to be collected as other taxes.
What effect, if any, the amendment of 1883 has upon this we need not decide. As the law under which the rights of the parties in this case are to be determined stood, the authority of the auditor to issue a deed was gone upon the discovery that the sale was illegal. He was not-bound to take notice of the illegality of the sale, but if, before the issuance of a deed, the land-owner tendered the money for all taxes legally due, with interest, penalties for delinquency and charges thereon, and the sale was in fact illegal, this discharged his obligation. If, afterwards, as in this case, the auditor issued a deed to the purchaser, it would enable the owner of the land to quiet his title against the holder of such deed by averring and proving the illegality of the sale, the tender and bringing of the money into court for the benefit of the purchaser.
It is said that this view of the case secures to the delinquent taxpayer immunity from the payment of taxes when due by the payment of six per cent, interest, in addition to the penalty for delinquency.
It only secures him immunity in case his property is sold illegally, and from such sales he is entitled to immunity. His property is liable to distress and sale, and it is no hardship to require that it be sold in compliance with law. In no event could the purchaser lose his money, but he took the chance that if the sale was illegal and void, he might only receive it back, with lawful interest, provided it was paid within the time for redemption and before a deed was issued. Tax laws, so far as they relate to redemption, should be liberally construed in favor of the land70wner.
The petition for a rehearing is overruled.
Filed Oct. 15, 1885.