dissenting. Under the provisions of 32 V.S.A. § 5259 a city or town is authorized to become the purchaser of real estate at a tax sale thereof “. . . if a bid not equal to the tax and costs is made at such sale. Land so acquired shall be held, leased, sold and conveyed like other real estate belonging to such city or town.”
Then follows section 5260 which permits redemption by the owner or mortgagee, his representatives or assigns within one year from the day of sale.
In this case the sale was held on February 21, 1966. The Town of Barnet purchased the property for the amount due on the delinquent taxes and costs, namely $848.67. No other bid for the property was made. There remained no surplus over and above the delinquent taxes and costs due. No question is raised as to the validity of the tax sale.
The property was not redeemed. On March 3, 1967, the tax collector conveyed the property to the Town of Barnet. On March 22, 1967, the town sold and conveyed the property *51receiving therefor the sum of $5,314.00. Not until March 6, 1968, did plaintiff bring this action.
This is not a case of a disposition of any surplus resulting from the price bid for the property at the time of the public sale over and above the taxes and costs. On the contrary, we are concerned with a subsequent and independent transaction, that is, a resale of the property by the town which resulted in a profit.
In referring to 85 C.J.S. Taxation § 817, I find the following statement:
“As a general rule the surplus of a tax sale remaining after payment of the taxes, interest, and costs belongs to the owner of the property at the time of the sale; but, in the case of a resale by the state or county, the former owner is not entitled to such surplus, unless the constitution or a statute provides otherwise” See cases cited under notes, 88 and 96. See Oosterwyk v. County of Milwaukee, 31 Wis.2d 513, 143 N.W.2d 497 (1966).
To my knowledge, we have no statutory authority requiring payment to the former owner of the property of any profit or surplus derived by the Town of Barnet as a result of the resale of the property. By retaining the profit, I seriously question whether the facts reveal a “taking of property” contemplated by the Federal and State Constitutions.
Had the property in question been purchased at the tax sale by a third party for only the amount of the unpaid taxes together with costs, and without any then surplus remaining, it must be recognized that the taxpayer should not be permitted to participate in any profit derived on a resale of the property.
By purchasing the property at a price not exceeding the unpaid taxes and expenses, it is my view that the position of the Town of Barnet is akin to that of a third party purchaser. If, later, a profitable resale was made, which appears to be the case, it becomes the town’s good fortune. On the contrary, had conditions resulted in a loss to the town on a resale of the property, it would have been the town’s misfortune, not that of the taxpayer.
It seems to me that to require an accounting on the part of the town leads to inconsistent and unequal rights of a town *52and third party purchasers at a tax sale which are not justified. I believe the town of Barnet stands in the same shoes as a third party purchaser and should not be required to account to the plaintiff for the profit derived from the resale of the property.
The case of U.S. v. Lawton, 110 U.S. 146 (1884), cited in the opinion, is distinguishable from our case in that the profit or surplus resulted from the initial tax sale, and not from a resale of the property as in this case.
I would affirm the decree dismissing plaintiff’s bill of complaint.
On Reargument
Barney, J.The existence of any fiduciary relationship between the town and its officials and the plaintiff taxpayer is challenged on reargument by the defendant town. Cummings v. Holt, 56 Vt. 384, 387-88 (1883), among other cases, points out that sales of land for taxes are modes of transferring land titles by operation of law, without the agency of the owner. They are not “willing-buyer willing-seller” transfers, but proceeding in invitum. Brush v. Watson, 81 Vt. 43, 47, 69 A. 141 (1908). The case of Chandler v. Moulton, 33 Vt. 245, 248 (1860), specifically refers to the fiduciary relationship created when a tax collector holds property to be sold for taxes. The taxing authority stands before the law no better than the officer. Smith & Son v. Town of Hartford, 109 Vt. 326, 333, 196 A. 281 (1938). Moreover, the Chandler case also points out that the inconsistency in the positions of buyer and seller makes them so incompatible that they ought not to be united. As to municipalities, the legislature has, by 32 V.S.A. § 5259, excused this incompatibility, but this does not put the town at arms-length with its own delinquent taxpayer. His situation is the product of the acts of the municipality in both assessing the tax on his property, and initiating the proceedings looking toward collection and resulting in the sale. For the privilege of so proceeding, the town must suffer the restraints of fiduciary duty.
The property sold at the 1966 tax sale was shown on the grand list of the defendant town as consisting of two parcels, and in 1965 and 1966, separately listed, the dwelling house and one-half acre of land was appraised at $8,100.00, and the *53so-called “boarding house lot” was appraised at $900.00. In 1967 these appraisals were increased 25%.
At the tax sale, both parcels were sold as a unit to the town as purchaser under the statute, 32 V.S.A. § 5259, for $848.67, the taxes and costs due, there being no other bidders. The tax collector had canvassed those present for bids for less than the whole property, but got no bids at all other than the one for the whole finally interposed by the town. With all technical requirements having been complied with, the transaction was not then vulnerable to an attack on its procedures.
However, it was open to the taxpayer-plaintiff to pursue one of several remedies. He could exercise his redemption rights under 32 V.S.A. § 5260. This must be done within one year. He could also challenge as invalid acts relating to the collection of the tax, within one year limitation of 32 V.S.A. § 5294. Or he could, as was done here, sue the town as purchaser and grantee under the tax collector’s deed, and its assigns, for recovery of his lands. This right of action is subject to a three year limitation. 32 V.S.A. § 5263. A showing of invalidity in the sale is a prerequisite to recovery.
In this case, beyond what had already been developed in the evidence, the facts also showed that, after the one year redemption period had passed, less than three weeks after receipt of the tax collector’s deed, the defendant town sold the same premises to the high bidder for a price of $5,314.00. This reveals an immediate confrontation with the proposition in Brush v. Watson, supra, 81 Vt. at 49, which states that if the consideration paid on a tax sale is so inadequate to lead any fair-minded person to the conclusion that it was unnecessary to sell that entire property for the payment of the taxes and costs, that fact alone is enough to establish that the collector sold more than was necessary. Cummings v. Holt, supra, 56 Vt. at 388, labels such a sale “fatally defective,” and Peterson v. Moulton, 120 Vt. 439, 442, 144 A.2d 717 (1958), reiterates the rule that it is for one who justifies under a tax deed to prove that no excess was sold. Thus, although compliance with the mechanics of the tax sale procedures was established, compliance with the substantive requirements was not.
*54This proceeding is in equity. Implicit in such an action is a requirement that the plaintiff be ready and willing to do equity on his part, if necessary, at least as to third parties who may have, by investment, increased the value of the property after good-faith acquisition from the town. Blanchard v. Knights, 121 Vt. 29, 37, 146 A.2d 173 (1958). This requirement is intensified by the limitation of such a third party’s recovery against the town to the amount paid to acquire the property. Saulters v. Victory, 35 Vt. 351, 353 (1862). In this case it is undisputed that the purchaser from the town, over and above the purchase price, has expended money on the property, replacing the furnace and repairing the brick work. Plaintiff’s right to return of the property is compromised by his failure to make any offer in these proceedings to do equity toward that purchaser in connection with these improvements.
Payment to the plaintiff of the money received by the town in excess of taxes and costs, in lieu of return of the property, is opposed because no express authority for such payment exists. Further, it is pointed out that the law says that land acquired by tax sale belongs to the town, and may be held, sold, leased or conveyed as any other lands owned by the town. 32 V.S.A. § 5259. In other remedies against property on which taxes are due, provision is made for paying over any surplus. Where the tax obligation is enforced by way of foreclosure of a lien on the property, the excess must be accounted for and paid over as provided in 9 V.S.A. § 1796, as in the case of foreclosure of a chattel mortgage. 32 V.S.A. § 5061. That excess goes to the taxpayer. Where the remedy of distraint is used under 32 V.S.A. § 5191, the balance from the sale is to be returned to the taxpayer. 32 V.S.A. § 5193.
There is no such provision with respect to the collection of taxes by the institution of a suit for that purpose under 32 V.S.A. § 5221. This is because the measure of recovery is determined by the extent of the tax obligation, and there is no excess to dispose of. Similarly, if the statutory injunction in 32 V.S.A. § 5254 is obeyed, and only so much of the land is sold as is necessary to pay the tax and costs, there should be no excess to dispose of. Thus, any statutory direction to account for the excess is not only unnecessary, but would, by implication, run counter to, and undercut, the restriction on *55the amount of land to be sold contained in 32 V.S.A. § 5254.
This distinction is reflected in our case law. For example, where the remedy of distraint is availed of, it may not be an impropriety for the collector to sell more of that distrained property than is required to pay the tax. Since the statute requires the'balance or overage to be paid to the owner-taxpayer, the sale is not invalid. Hughes v. Kelley, 69 Vt. 443, 445, 38 A. 91 (1897). On the other hand, not only is a sale of more land than necessary a violation of the tax sale statute, but is further condemned because it may enlarge the burden of redemption. Cummings v. Holt, supra, 56 Vt. at 388. Thus, the issue is not the absence of statutory authority to pay over any excess proceeds, but, instead, the absence of any authority to receive them, on a sale of land for taxes, in the first place.
When the town exercised its privilege under 32 V.S.A. § 5259 to become a purchaser at the tax sale, it also subjected itself to the right of the taxpayer to bring an action to recover his lands against the town as grantee of such lands under a tax collector’s deed, within the limits of 32 V.S.A. § 5263. The fact that the plaintiff did not qualify to recover title or possession of the property in his action did not foreclose him from compensatory relief, based on the demonstrated sale value of the property levied upon, over and above the taxes and costs. No justification for the withholding of this excess from the plaintiff, derived as it was from the compelled sale of his land, has been demonstrated. Its retention by the town amounts to an unlawful taking for public use without compensation, contrary to Chapter I, Article 2, of the Vermont Constitution.
No change or modification of the previous order is required as a result of reargument. Let full entry go down.