Rice v. Ashland Real Estate & Improvement Co.

The following opinion was filed May 12, 1888:

The learned circuit judge held, and we think correctly, that the authority of the county clerk to execute a conveyance of the lots in controversy to the plaintiffs was a mere naked power, and that if the conditions upon which alone he was authorized to make the conveyance to the plaintiffs were not complied with such conveyance is invallid and the plaintiffs took no title under it. TIence the question is, Wei-e the conditions prescribed in the resolutions of the county board of supervisors, upon which the clerk was authorized to convey the lots, substantially complied with? •That is to say, Did the plaintiffs pay for the lots in controversy the amount which the board required the clerk to demand and receive as a condition precedent to his authority to convey the lots to the plaintiffs?

This brings us to consicler the resolutions of the board of supervisors in that behalf. It seems to us that the true construction and meaning of these resolutions is not'doubtful or difficult to be ascertained. The resolution of May 8, 1879, allowed the clerk to sell the lots for seventy-five per cent, of the face value of the certificates of sale, together with certain fees arbitrarily fixed without regard to the statute, and interest at the rate of ten per cent, per annum on the gross amount paid, to be computed from May 1, 1879, to the date of the conveyance executed pursuant to the resolution. The resolution of February 8, 1881, only *107repeals former resolutions conflicting with it, leaving those not conflicting with it'in full force. That resolution repealed the provision in the resolution of May 8,1879, which allowed sales for seventy-five per cent, of the face value of the certificates, and required that the full face value thereof, with the statutory interest added, should thereafter be paid. It also repealed that portion of the same resolution which fixed arbitrary fees for making the deed, and required that the statutory fees should thereafter be paid. But the provisions of the resolution of May 8, 1879, which authorized the clerk to sell and convey lands held by the county under tax deeds, and which required him to demand and receive for such conveyances, in addition to taxes, statutory interest, and fees, ten per cent, per annum on the gross amount paid from May 1, 1879, to the date of the conveyance executed under the authority of the resolution, are not in conflict with the resolution of February 8, 1881, and were not repealed thereby. The plaintiffs did not pay such ten per cent, interest, the amount of which is several hundred dollars. Because they did not do so, it must be held that the county clerk had no authority to execute such conveyance to the plaintiffs, and the same is therefore void. It will be seen that we construe the resolutions differently from the circuit court, but the result is the same.

It was argued that there is- proof tending to show a ratification by the board of supervisors of the conveyance executed by the county clerk to the plaintiffs, and that the question of ratification should have been submitted to the jury. A careful examination of the testimony fails to disclose any evidence sufficient to send that question to the jury.

By the Court.— The judgment of the circuit court is affirmed.

A motion for a rehearing was denied September 18,1888.