Dissenting Opinion.
Mitchell, C. J.The judgment of the court seems to be predicated upon the following propositions: 1. A tax sale, although made in disregard of the most peremptory requirements of the statute, is, nevertheless, not invalid and void, unless the land sold was not liable to taxation, or unless the taxes had been paid, or the description of the land was so imperfect as to fail to describe the property with reasonable certainty, or where the sale was made without authority of law, which is interpreted to mean, where the officer had no power to make the sale. 2. A tax sale, although made in violation of mandatory provisions of the statute, unless the sale was invalid for the reasons assigned above, nevertheless immediately vests in the purchaser the lien which the statute imposed in favor of the State upon the property of the taxpayer. 3. The only manner in which a delinquent taxpayer whose property has been thus sold, although he may immediately or within two years thereafter tender the amount of the taxes, penalties and interest, prescribed in section 6488-, R. S. 1881, can remove the cloud east upon his property by an illegal and unwarranted tax sale, is by submitting to the conditions prescribed or interest enjoined by section 6466, R. S. 1881, and by redeeming his property precisely as if the sale had been in all respects regular and legal.
"Without in any manner controverting the validity of the first two propositions, the following reasons and authorities are submitted in justification of this dissent and non-concurrence with the opinion of the court as respects the proposition last stated. That an attempt by a public officer to sell the property of an individual, in violation of law, should, *266or by any possibility could, impose upon the owner the necessity of redeeming, or buying back his property, as if it had been lawfully sold, or taken by due process of law, is a proposition which, it is submitted with great deference to the opinion of the court, can not be supported, either in reason or upon authority. An intention to require that this should be done is nowhere to be found in the statute, and if it were, the question would then arise whether or not it was within the power of the Legislature to enact that one whose property had been sold, or subjected to an onerous burden, without due process of law, could be required to accept the alternative of redeeming from an illegal sale, upon oppressive terms, or of losing his property as though it had been sold in conformity to law. That the State may compel the delinquent taxpayer to reimburse the purchaser who has discharged the obligation of the land-owner, and who through the fault of public officers acquired nothing in return, is abundantly settled, but whether a penalty or increased burden can be imposed upon the land of the taxpayer without due process of law, or as a result of an illegal sale, is quite another question.
As is said by an eminent authority, “ The Legislature can have no more authority to compel a land-owner to pay a lawless exaction to a third person than it has to compel a like payment to the State directly. The one as much as the other would be robbery.” Cooley Taxation, 553.
Any conclusion, therefore, which rests upon the assumption that the Legislature must have anticipated that revenue officers would violate or disregard the law, and make illegal tax sales, and that the statute providing for redemption from tax sales must on that account be applied to all sales indiscriminately, illegal and legal alike, can not be well founded.
As was said by Church, Ch. J., in Trowbridge v. Horan, 78 N. Y. 439, an intention can not be imputed to the Legislature to visit penalties upon the citizens for not paying the tax upon an irregular assessment. So we say courts can *267not ascribe to the Legislature an intention to compel citizens whose property might be sold in violation of law, either to lose it or submit to onerous penalties in redeeming it from invalid or ineffectual sales. In the language of Cooley, J., “ Penalties can not be imposed in respect of the non-payment of taxes which the Legislature assumes are irregular and authorizes the correction of.” Cooley Taxation, 305, note. Eor the same reason redemption in the statutory sense can not be predicated upon an illegal sale. It is altogether unnecessary, however, to inquire what the Legislature had, or had not, the power to do in respect to redemptions from illegal sales, since it seems abundantly clear that no attempt was made to require the owner of property thus sold to make a statutory redemption.
It is settled law that a purchaser at a tax sale either gets the title to the land sold or he gets nothing unless the statute makes provision for his security or reimbursement. Thus. it is said: “ The purchaser at a tax sale therefore either gets a title to the land subject to the statutory redemption, or he gets nothing. If he receives a deed which for any reason is subject to a fatal infirmity, he will lose what he has paid. This is the rule unless the statute shall recognize an equity in him and provide for it. Sometimes the statute does this by making a provision for the refunding of his money from the public treasury. But sometimes also statutes give him a lien upon the land.” Cooley Taxation, 546.
Statutes which make provision for redemption by the owner relate to one subject, while those which recognize the equity of the purchaser, and make provision for his security in cases of illegal tax sales, relate to an entirely different and distinct subject.
It would be idle to enact statutes providing for redemption from sales that are ineffectual to convey title. In such a case the land-owner has lost nothing to redeem. The purchaser is the one whose equity needs protection, and statutes appropriate to that end have been enacted.
*268No correct conclusion can possibly be reached by confounding statutes which provide for the land-owner with those which make provision for the purchaser. Those relating to redemption rest upon the assumption that the land of the delinquent taxpayer has been sold, and make provision for its redemption, or re-purchase, by the former owner. Those which make provision for refunding, or securing, the repayment of money paid by a purchaser at a tax sale presuppose an invalid or ineffectual sale, in consequence of which the State'obtained the purchase-money for which the tax purchaser got nothing in return, out of which arise the propriety and equity of reimbursing or affording him adequate means of reimbursement for money paid into the public treasury. In the one case a valid sale,has occurred, and the purchaser has acquired a right, or title, to the land sold, subject to the right of a statutory redemption by the owner. In the other the sale is invalid, or ineffectual; the title to the land is wholly unaffected, but the purchaser having paid his money into the public treasury, and discharged the obligation of the delinquent taxpayer to the State, the State in turn recognizes the equity of the purchaser, and transfers to him the lien which it had on the defaulting taxpayer’s land. The purchaser thereafter, until a deed is made as provided by law, is placed in the same 'relation to the delinquent taxpayer which the State occupied before the sale. His rights are neither more nor less, as we shall see by the authorities later on, than those which the State would have possessed had no sale occurred.
Section 6466, proceeding upon the assumption that land of the delinquent taxpayer has been regularly sold, makes provision whereby he may redeem by paying to the purchaser the amount of the purchase-money, with interest calculated at a very high rate. The purpose of this exaction is twofold. It operates as a penalty upon the delinquent owner, tending to insure greater promptness on his part in discharging his obligation to the State; and, on the other hand, it *269stands as an inducement to purchasers to make profitable investments. These considerations are to be understood, as we quote from a learned author, “as referring only to the case of redemption from a valid tax sale. If the sale was void, it may be set aside at the owner’s suit without redemption. But in that case the rights of the tax purchaser and the amount he is entitled to receive will depend upon a different-class of statutes.” Black Tax Titles, section 185. This statement is nothing more than the recognition of the difference remarked upon by all the text-writers between statutes which make provision for redemption and those which provide for the reimbursement of the purchaser at an ineffectual tax sale. It is pertinent, therefore, to inquire what provision has been made for the security of those who purchase real estate at a tax sale which is so far invalid as to be ineffectual to convey the title to the purchaser. Section 6488, R. S. 1881, which with the preceding sections relating to invalid tax sales, has been in force, without substantial modification, since 1853, provides, in substance, that if any conveyance of land sold for taxes shall prove invalid or ineffectual to convey title for any cause, except that the land was not subject to taxation, or that the taxes had been paid, the lien which the State has shall be transferred to and vested in the purchaser, “ who shall be entitled to recover from the owner of such land the amount of taxes, interest^ and penalty legally due thereon at the time of the sale, with interest, together with the amount of all subsequent taxes paid, with interest; and such lands shall be bound for the payment thereof.” This statute expresses the right of the purchaser at an invalid tax sale, and the liability of the delinquent taxpayer can by no possibility be greater than the. right conferred by statute upon the purchaser. The two are co-existent and co-extensive, and can not logically be construed otherwise. The effect of an invalid tax sale by force of this section is to invest the purchaser with the lien of the State, and to clearly and specifically define the measure of *270his rights and the extent of his remedy. In doing this it also fixes the liability of the taxpayer, because the rights and liability of both are wholly statutory.
Statutes similar in import have been enacted and are in force in most of the States, and their construction by courts has been singularly uniform and without discord until now. The construction thus given has uniformly been in accord with the decision of this court in Michigan Mutual L. Ins. Co. v. Kroh, 102 Ind. 515, as it is believed the authorities which follow abundantly demonstrate.
In Gage v. Pirtle, 124 Ill. 502, the Supreme Court having under consideration a statute regulating the reimbursement of purchasers at invalid tax sales substantially like our own, in a case where land had been sold at a tax sale without giving the notice required by the statute of the State of Illinois, after summarizing the provisions of the statute relating to redemptions from tax sales, which is also similar to that in force here, said: “ These are the amounts, it is claimed, which were required to be paid here by the above proviso of the statute of 1885. ¥e do not think so. It would not seem reasonable to inquire the land-owner to pay such amount in order to have set aside a tax deed upon his land which had been wrongfully obtained. It would be equitable that he should refund to the tax sale purchaser the amount paid upon the purchase, and all taxes, charged upon the land, paid by the latter, with interest, and we think that is all that the statute requires to be paid.” The statute of Illinois secured to the purchaser at an invalid tax sale “ all taxes and legal costs, together with all penalties, as provided by law,” as it shall appear the purchaser or his assigns properly paid. Section 6488, R. S. 1881, secures to such a person “ the amount of taxes, interest, and penalty legally due thereon at the time of sale, with interest, together with the amount of all subsequent taxes paid, with interest.” The statutes are therefore not distinguishable.
The same question was before the same court in Gage v. *271Waterman, 121 Ill. 115. The court, after refuting the contention that the statute relating to redemptions determined the right of the parties, said: “ It has been held by repeated decisions of this court, that the rule of allowing the amount paid at the sale, and also all subsequently paid taxes and assessments, together with interest thereon, is the proper one. Barrett v. Cline, 60 Ill. 207; Phelps v. Harding, 87 Ill. 442; Smith v. Hutchinson, 108 Ill. 662.”
As stated in the head-note, the same court held in another case, that a bill may be maintained to cancel an invalid tax title and certificate of purchase, but the complainant will be required to pay the purchase-money at the tax sale, and all subsequent taxes paid, with six per cent, interest. Barrett v. Cline, supra.
In Alexander v. Merrick, 121 Ill. 606, the same rule was enunciated. The precise question here involved came before the Supreme Court of Nebraska in Dillon v. Merrian, 22 Neb. 151, decided in 1887. That case arose out of the fact that real estate had been sold while the taxpayer owned available personal property. The decision is based upon the statutes regulating redemption from tax sales, and providing for the security of the purchaser in cases of sales ineffectual to transfer title similar in effect to our own. Delivering the judgment of the court, Maxwell, C. J., said: “ The defendant contends that she is entitled to forty per cent, per annum interest on the amount of taxes paid until the time to redeem expired. In Pettit v. Black, 8 Neb. 52, it was held that where the sale of the land was invalid the tax purchaser would be subrogated to the rights of the county. In effect, there was no valid sale. The purchaser therefore simply acquires the lien possessed by the county, which would entitle him to interest at the rate of one per cent, per month. Lynam v. Anderson, 9 Neb. 367; Jones v. Duras, 14 Neb. 40. There having been no valid sale of the land the tax purchaser is subrogated merely to the rights of the county, and is not entitled to the rate of interest claimed.”
*272In Barke v. Early, 72 Iowa, 273, the rule, as established by numerous decisions of the Supreme Court of Iowa, is reiterated to this effect: In an action to set aside a sale for taxes, for failure to comply with a provision of the code, the plaintiff was properly required to pay the amounts for which the lands were sold, with the penalty and interest thereon, the same as if there had been no sale, and the plaintiff was paying the delinquent taxes to the county. Beck, J., pronouncing the judgment of the court, said : “The doctrine recognized by this court appears to be this : Where the tax is valid and enforceable against the land, and the sale is void or voidable, the tax, with penalties, may be recovered by the purchaser at the sale, in an action against the owner. * * * These rules are supported by the following reasons: In case the land may be sold for the taxes, the taxpayer stands in the position of a delinquent whose land is subject to tax sale. He ought in that case to be liable as a delinquent for the interest and penalties which the statute prescribed shall be paid after delinquency. The purchaser takes the place of the county by his purchase.” See Besore v. Dosh, 43 Iowa, 211; Miller v. Corbin, 46 Iowa, 150; Everett v. Beebe, 37 Iowa, 452; Early v. Whittingham, 43 Iowa, 162; Roberts v. Merrill, 60 Iowa, 166.
In Fix v. Dierker, 30 La. Ann. 175, the rule in the State of Louisiana, as summarized in the head-note, is declared substantially in the following language : A tax sale made without notice is void, and the amount paid by the purchaser, with interest, must be restored to him by the owner before the cloud can be removed from his land. Hickman v. Bawson, 35 La. Ann. 1086.
In Hart v. Smith, 44 Wis. 213, an action to have a tax certificate cancelled, it was held, where the tax was invalid on account of irregularities which did not go to the ground work of the tax, that the owner, as a condition of obtaining relief, must pay the amount of taxes fairly and justly assessed, with interest, together with the costs of the suit. *273See Cogburn v. Hunt, 57 Miss. 681; Stetson v. Freeman, 36 Kan. 608. Decisions to the same effect as those above might be cited from many other States, all of which fall in a straight line with each other and with the ruling of the learned court below. Nor is the language of the text-writers any less explicit. “ One redeeming,” says the author, “ from an invalid sale is required to pay the purchaser only the amount of his bid and six per cent, interest thereon.” 2 Blackwell Tax Titles, section 722. “ If, however,” says another, “ the owner of land * * * seeks to redeem the same from an invalid tax sale, he is required to pay the purchaser only the amount of his bid with common interest.’’ Black Tax Titles, section 185. See, also, Cooley Taxation, 546. So much for the authorities other than the decisions of this court.
The question under discussion here was not even remotely involved in State, ex rel., v. Casteel, 110 Ind. 174. That was a proceeding to compel the auditor of Clay county to refund money paid at a tax sale. It was correctly held that inasmuch as the purchaser had acquired the lien of the State he was not entitled to the remedy sought. In St. Clair v. McClure, 111 Ind. 467, no question touching the amount required to be paid by the owner of land sold at an invalid tax sale in order to remove the cloud from his title is suggested. The same may be said of Morrison v. Jacoby, 114 Ind. 84. Two points, and two only, are decided in that case. One was, that a purchaser at a tax sale, which is ineffectual to convey title, although he had only a certificate of purchase, is invested with the lien of the State, by the terms of section 6488, above quoted. The other, that a complaint by a land-owner to enjoin the execution of a deed to the purchaser is insufficient unless it shows a sufficient tender,and that the tender was kept good by bringing the money into court.
That the opinion declares the law accurately on both the points involved and decided is beyond controversy. It is *274true some reference appears to have been made incidentally to redemptions from tax sales under section 6466 ; but it is submitted that an examination of the record and opinion fully discloses that no question relating to the amount which the purchaser at an invalid tax sale was entitled to receive was either involved or considered.
The only case decided by this court in which the direct question now under consideration was involved, is Michigan Mutual L. Ins. Co. v. Kroh, supra. In that ease a taxpayer whose land had been sold in violation of the statute tendered the purchaser, who held a certificate of purchase, merely “the amount of taxes, interest and penalty legally due thereon at the time of sale,” as provided in section 6488. In that case, as here, it was insisted that the redemption should have been made under section 6466, and it was held, in effect, that inasmuch as the sale was invalid the purchaser was merely subrogated to the rights of the State, and that until he had received a deed he was entitled to receive only the amount specified in section 6488, viz., the taxes, penalties and interest paid by him, together with six per cent, interest thereon. It is now respectfully submitted that Michigan Mutual L. Ins. Co. v. Kroh, supra, is in strict accord with the rule laid down by all the text-writers on taxation, and that it is in harmony with every adjudicated case on the subject except the one now decided by the court. The judgment in the case cited rests upon the assumption that the language found in section 6488, to the effect that the purchaser at a tax sale who fails to acquire title shall be entitled to enforce a lien upon the land for the amount of the taxes, penalties and interest due thereon at the time of sale, together with interest, was to be regarded as expressing the intention of the Legislature in respect to the rights of the purchaser at such sale and the liability of the delinquent taxpayer.
The conclusion reached by the court in the present case seems tó be predicated upon the assumption that in order to arrive at the legislative intent in the respects mentioned, sec*275tion 6466, which relates to statutory redemptions, must be carried forward over twenty-two intermediate sections, and amalgamated with section 6488, which relates to affording security for, and defining the rights of, a purchaser at an invalid tax sale.
Filed April 5, 1890.Erom this I dissent, and conclude by adopting the following language from the opinion of the court in Gage v. Pirtle, supra, a case in every way parallel with the present: “ Had it been the intention that the land-owner should pay an amount equal to the sum. which would had to have been paid upon redemption of the land from the tax sale, it would have been quite easy to have so said in plain terms, instead of expressing such purpose in the blind and roundabout way of this statute.” To hunt for the intention of the Legislature by a hidden, circuitous route when it is plainly and directly expressed, is not admissible.