I. The deed from Redding, Deputy Sheriff, to D. O. Mills, was in all respects regular and sufficient to pass title. Wood v. Calvin, 5 Hill, 231; Tuttle v. Jackson, 6 Wend. 224; Jackson v. Collins, 3 Cow. 95.
The deputy's authority is not taken away by the Statute of 1853. This case comes directly within the operation of the rule, that where a right exists at common law and a new remedy is given by statute, the latter is cumulative, and either remedy may be pursued; but where the right and the remedy both are given by statute, that remedy can alone be pursued. People v. Craycroft , 2 Cal. 244; People v. Raynes , 3 Id. 367; Cohen v. Barrett , 5 Id. 210; Ward v. Severance , 7 Id. 129; Roberts v. Landecker , 9 Id. 267; State v. Poulterer , 15 Id. 526.
II. The rule that a mortgagee or tenant in common can acquire no title under a tax sale against his mortgagor or co-tenant, so far as it exists, comes under the doctrine of constructive fraud, and is inapplicable to the express provisions of the statute which governs this case.
The statute under which respondent's deed was executed provides, that " any deed derived from a sale of real property under this act, shall be conclusive evidence of title, except as against actual fraud, or prepayment of the taxes, and shall entitle the holder thereof to a writ of assistance from the District Court to obtain possession of such property." It is only necessary to show that the fraud which defeats a tax title against a co-tenant or a mortgagor is a constructive or legal fraud, and that a distinction amounting to a contrast exists between constructive and actual fraud, to prove that our statutes, in limiting the defect of tax titles to actual fraud alone, meant to sweep away that which was formerly created by constructive fraud. In Blackwell on Tax Titles, 466, that commentator devotes a chapter to sales " actually and constructively fraudulent," in which he distinguishes between these as involving in the one case positive and in the other inferential fraud. Positive fraud, he says, " of course renders the sale void." He then proceeds to declare: " Though positive frauds sometimes occur, the most numerous kind are those usually denominated constructive, or that class of fraud which may be inferred from the violation of public or private confidence; from the privity of the purchaser with the title sought to be divested; or on account of their being contrary to public policy." And under this middle class of persons having privity with the title, he introduces the cases of a mortgagee in possession (p. 472) and a tenant in common (p. 472), " in such case" --that is, in a case where he is a person--" whose duty it is to pay the taxes."
JUDGES: Cope, C. J. delivered the opinion of the Court. Norton, J. concurring.
OPINION
COPE, Judge
This is an appeal from an order granting a writ of assistance to put the plaintiff in possession of an undivided interest in certain property in the City of Sacramento. The proceeding was instituted under the fifth section of an Act of the Legislature, passed April 3d, 1860, entitled " An Act to provide for the Collection of Delinquent Taxes in the City and County of Sacramento." The section provides, that " any deed derived from a sale of real property under this act shall be conclusive evidence of title, except as against actual frauds and prepayment of the taxes, and shall entitle the holder thereof to a writ of assistance from the District Court to obtain possession of such property." The sale was made by one Marshall, who was then Sheriff of Sacramento County, and the deed was executed by his deputy after the expiration of his term of office and during his absence from the State.
It is objected that the deputy had no authority to execute the deed; and the Act of 1858, " for the relief of purchasers at sales of real estate by public officers," is referred to as sustaining the objection. The act (sec. 1) provides, that " where lands have been or may hereafter be sold by a Sheriff, or other authorized officer, for taxes, or under an execution or order of sale, the purchaser or his assigns may be entitled to a deed, and the Sheriff or other officer who made the sale is dead, or absent from the State, or in any wise disqualified, it shall or may be lawful for the successor of the said Sheriff, or other officer, to make such deed to such purchaser, his assignee or assignees, in the same manner and with the same effect, as if made by the officer making such sale." Under the law as it stood prior to the passage of this act, the successor of the officer making the sale had no power to execute the deed, and the effect of the act is simply to confer upon him the power to do so. It takes nothing from the authority of the officer who made the sale; and his power to execute the deed, either by deputy or in person, continues as before. The object was to relieve the purchaser and not to limit the power of the officer. In case of death or disqualification, of course the deed must be executed by the successor, and it may be executed by him in the case of absence. In the latter case, however, his authority is not exclusive, unless the absence be such as to amount to a disqualification. The whole subject is a matter of statutory regulation, and there is nothing in the act in question operating as a repeal or modification of previous statutes. It is objected, further, that at the time of the sale the parties were tenants in common of the property, and that the plaintiff was the holder of a mortgage upon the interest of the defendant. These objections would be decisive of the case if it were not for the fact that the statute under which the sale was made gives conclusive effect to the deed, except as against actual frauds and prepayment of the taxes. The sale was made on a judgment regularly obtained, and there is no doubt that under the statute the title passed, and that the plaintiff has a right to the possession of the property. As a general rule, neither a tenant in common nor a mortgagee can acquire a tax title and set it up as against his co-tenant or mortgagor, but this rule rests upon the doctrine of constructive frauds, and is not applicable in a case like the present, where the fraud must be actual. It is possible that in equity the purchase would be regarded as a trust, and relief administered on that ground, but in this proceeding the defendant cannot avoid the effect of the deed. He must present a proper case for equitable interference before the assistance of the Court can be invoked in his behalf. His defense is based upon the invalidity of the deed, and under the statute the deed cannot be rejected as void.
Other objections are interposed, but they are not well taken.
The order is affirmed.