strong argument against the existence of the right of recovery in the absence of a statute authorizing it.
In this connection we must notice another point. The tax-sale certificates issued to appelant’s assignor recite that the purchaser will be entitled to a deed on and after a specified date, in case no redemption is made. Counsel insist that such recital is equivalent to a covenant for a deed, which cannot now be given because the city has been perpetually enjoined from issuing deeds on such certificates. But we do not think the recital constitutes a covenant in any proper sense. It is simply a recital of a provision of the law, and its presence in the certificate adds nothing to the force of the law, or to the liability of the municipality. Even if held to be a covenant we could not give it effect. The tax collector’s powers are such only as are given by statute. He cannot bind the municipality which he represents to any liability not authorized by law, and he is without authority to make such covenant. It is true that a collector's promise to refund in case the tax-sale proved illegal was enforced in Brevoort v. City of Brooklyn, supra, but in Hyde v. Supervisors, 43 Wis. 129, the court held a similar agreement made by "he board of supervisors at the time of the tax-sale, and the further agreement, to secure to such purchaser a perfect title to the lands described in the tax-sale certificates to be in excess of any authority conferred upon the board and not binding upon the county. Certainly this is the better doctrine.
A distinction is sought to be made between cases where the defendant municipality receives the proceeds of the® tax-sale solely to its own use and benefit, and where it receives such proceeds in part as the collecting agent for other municipalities, and it is said that while a recovery might not be just in the latter cases, it should certainly be enforced in the former, and we are cited to the New York cases as making such distinction. No such distinction is affirmatively announced in those decisions. We doubt if any such were in the mind of the New York court. But if such distinction is made, it arrises from the fact that the court refuse to apply the rule of caveat emptor in Chapman v. City of Brooklyn, and, as we hold that such rule applies in this case, we cannot adopt such distinction.
