so long as the board continued in session, it was ‘notice to the public that its duties would be performed when and as soon as the return should come before them. Under such circumstances, we are quite clear that the public had practically notice and an opportunity to be heard before the board in 1886 despite the fact that the roll was not returned upon or before the date required by statute for its return to the county clerk. We conclude that the tax of 1886 was valid as a tax, and none the less so because the sales and deeds were illegal and void on account of certain irregularities which do not go to the ground work of the tax.
We here encounter a point arising under our very, peculiar and very confusing statutes inherited from territorial times. Apellant contends that the action was not lawfully commenced, and must be dismissed because the taxes and interest were neither paid nor tendered before the suit was brought; citing § 1640 of the Comp. Laws in support of this position. This section, among other things provides: “No action shall be commenced by the former owner or owners of lands * * * to recover possession of lands which have been sold and conveyed by deed for nonpayment of taxes, or to avoid such deed, * * * until all taxes, interest and penalties, costs, and expenses shall be paid or tendered by the parties commencing such action.” A liberal construction of this section alone would oblige us to dismiss this action, for the reason that the tax of 1886 was neither paid nor tendered before suit; but we do not feel justified in putting such a construction upon the section, in view of the fact, especially, that § 1643 of the same statutes contains provisions in direct conflict with those quoted above, and the latter statute leads to a widely different result. Section 1643 provides, among other things, that in an action “to recover the possession or title of any property, real or personal, sold for taxes, or to invalidate or cancel any deed or grant thereof for taxes, * * * the true and just amount of taxes due upon such property or by such person must be ascertained, and judgment must be rendered and given therefor against the taxpayer.” A comparison shows that the provisions of the statute above
