It is only, therefore, for a party denying the validity of a tax to pay the same if demanded by the collector, and the payment insisted upon, and, having done so, to institute his suit against the town to recover back the same. "It is to be borne in mind that no such demand can be made for a tax, or necessity exists for paying an illegal one except when such tax has been assessed by sworn officers of the law, and under all the forms of law."

In Loud v. Charlestown, 99 Mass. 208, where reference was had to the provision by which assessors are relieved from legal responsibility for an illegal assessment, and to the very provisions we are now considering, it was declared that the Legislature, in limiting and regulating the remedy, has regarded the remedy against the town as adequate and complete, having reference to the necessity of a prompt assessment and collection of taxes for the maintenance of government.

It follows that the defendant, in this case, committed no trespass in distraining the plaintiff's cattle under an insufficient warrant. The warrant in his hands was valid, notwithstanding the excess in overlaying. If the plaintiff wished to recover his property, and prevent the cost and expense of a sale, he had only to pay his tax to the collector under protest, and recover of the town the illegal excess. If it be urged that the previous provision for the reassessment of taxes, which are invalid by reason of any error or irregularity in the assessment (Gen. Stats., ch. 11, § 53), is inconsistent with the construction here given, the answer is that the provisions of section 53 are all satisfied by applying them to cases where a party is assessed for less than his due proportion, or when the tax is assessed to the wrong person, or upon the wrong estate; and do not imply that there is any necessity for a reassessment of a tax like this, which is more than the due proportion, and which when paid to the town or district cannot be wholly recovered back.

The remaining question is whether the defendant became a trespasser by selling more of the property distrained than was necessary to pay the tax and all charges, and if so, to what extent he is to be treated as a trespasser. If a person refuses or neglects to pay his tax, the collector is required to levy the same by distress, or seizure and sale of his goods. The goods are to be kept by him, at the expense of the owner, at least four days, and then sold at public auction; and, if sold for more than the tax, and all charges, the collector is required to return the surplus to the owner upon demand, with an account in writing of the sale and charges. Gen. Stats., ch. 12, §§ 7, 8, 12. The provisions are minute, but they do not authorize or require the return of any property once taken. The surplus in cash is to be returned on demand of the tax payer. The proceedings, however, in this respect are to be governed by common-law rules, which control the right to distrain goods for rent or taxes. Blackstone says that goods distrained are for a time only a pledge in the hands of the distrainors, which they are bound, by an implied contract in law, to restore to the owner, on payment of the debt and expenses, before the time of sale; or when sold to render back the overplus. 2 Bl. Com. 452. It is well settled that an officer is answerable in trover for property sold on execution, after he has realized money sufficient to satisfy his writ. Stead v. Gascoigne, 8 Taunton, 527. Batcheller v. Wyse, 4 M. & Sc. 552. Aldrich v. Constable, 62 B. 370. Seekins v. Goodale, 61 Maine, 400. Wolcott v. Root, 2 Allen, 194.

It appears, from the report in this case, that the cows here distrained were sold separately, for the prices specified in the defendant's

return; and that the sale of the first seven produced a sum sufficient to pay the full amount of the tax, cost of distraint, and the defendant's fees, and that this was known to the defendant at the time. It was the duty of the defendant thereupon to return, or to offer to return, the remaining cows.

His act in proceeding to sell the same was a wrongful conversion of the property for which he is liable in this action, but which does not render him a trespasser ab initio. Seekins v. Goodale, above cited.

Judgment must therefore be rendered in favor of the plaintiff for the value of the two cows, as found by the jury. Cone v. Forest, 126

Mass. 97.

A sale of land for non-payment of taxes, if valid, creates a title paramount to any existing estate therein; and such title becomes absolute by the lapse of two years. Langley v. Chapin, 134 Mass. 82. A sale of land under an advertisement of a collector of taxes, which offers for sale "said parcels of real estate, or such undivided. portions of them as may be necessary," is invalid. Sanford v. Sanford, 135 Mass. 314.

An advertisement of a sale of a parcel of land taken for a tax, which incorrectly states the year for which the tax is assessed, does not comply with the Gen. Stats., ch. 12, § 20; and is fatally defective, although it states correctly the amount of the tax assessed. Knowlton v. Moore, 136 Mass. 32.

The provision in the Gen. Stats., ch. 12, § 35, that the collector's deed of land sold for the non-payment of a tax shall state "the place of residence of the grantee," is not merely directory; and a deed which omits such a statement is fatally defective Ib.

An action on the Gen. Stats., ch. 12, § 40, by the collector of taxes of a city, against a mortgagee of land, who has entered thereon and foreclosed his mortgage, after the lien created by section 22 has expired, for the amount of taxes assessed upon the land to the mortgagor in possession, cannot be maintained. Sherwin v. Boston Five Cents Savings Bank, 137 Mass. 444.

The statutes provide that "if after the sale of real estate for the payment of taxes a purchaser thereof fails to pay the collector within ten days the sum offered by him and to receive his deed, the sale shall be null and void, and the city or town shall be deemed to be the purchaser of the estate, according to the provisions of the preceding section." Pub. Stats., ch. 12, § 41. "If a purchaser does not pay the collector within ten days, the collector must, in order to comply with the statute, make a deed to the city or town; and a deed to the purchaser is void. The statute does not give the collector any option in the matter. In the case at bar, there was evidence sufficient to justify the finding that the defendant, the purchaser at the tax sale, failed to pay the collector within ten days the sum bid by him, and to receive his deed." MORTON, C. J. Holt v. Weld, 140 Mass. 578. A deed of a collector of taxes recited that "no person has appeared to discharge said tax," and that the collector "has demanded the same of S., the reported owner of said real estate; but the deed did not state that fourteen days elapsed after demand before advertising the premises for sale, or that the tax was not paid within fourteen days after the demand. Held, that, under the Gen. Stats., ch. 12, §§ 22, 35, the deed was void. Langdon v. Stewart, 142 Mass. 576.

If land is advertised for sale at the same time in the same newspaper by the same collector for the taxes of two successive years,