cases first above cited, and it must now be considered as overruled by those cases.

The last decision of this court on the precise point is Ellis v. Witmer, 134 Cal. 249, [66 Pac. 301]. Witmer had bought a lot at a sale by the city treasurer to satisfy a bond issued upon a street-assessment. The owners sued Witmer and the treasurer to cancel the certificate and restrain the execution of a deed thereon to Witmer. It was held that the assessment and bond were valid, but that the sale was void. The judgment was reversed because the plaintiff's had not offered to pay the amount due on the bond and because the court below had not inserted such condition in the judgment. The court said that the plaintiffs "cannot successfully invoke the assistance of a court of equity against the irregularities in the sale complained of, unless on the condition of paying what is due from them."

There are two decisions on the subject by the district court of appeal of the third district. In the first, Flanagan v. Towle, 8 Cal. App. 229, [96 Pac. 507], the court quoted and followed the rule as stated in Ellis v. Witmer, 134 Cal. 249, [66 Pac. 301]. In the other case, Hotchkiss v. Hansberger, 15 Cal. App. 603, [115 Pac. 957], that court overruled Flanagan v. Towle and followed the decision of the supreme court in Greenwood v. Adams, 80 Cal. 74, [21 Pac. 1134]. It distinguished Couts v. Cornell and other similar cases, including Ellis v. Witmer, by the statement that they were suits against public officials where some tax was justly owing to the state or city, apparently failing to observe that Ellis v. Witmer was a suit against a purchaser and the city treasurer and that the assessment was owing to the purchaser and not to the city.

The confusion thus apparent seems to have arisen from the failure to observe the difference between the cases where the tax purchaser is the actor and those in which relief in equity is sought against him. If the purchaser, claiming title under his tax-deed, sues for possession of the land, or if, perceiving that the deed is invalid, he sues the owner to recover the tax paid, as money paid to his use, the general rule is that he cannot prevail, that the rule of caveat emptor will be strictly applied against him, that a proceeding to assess and collect taxes creates no contract by the owner to pay the tax assessed,

and that the law will not imply a contract by the owner to refund such tax to one who has paid the same upon a tax-sale which is void, and this is true in cases where the tax was legally assessed but the proceedings to sell defective, as well as where the assessment, itself, is unauthorized and void, or where the tax had been previously paid. Mr. Pomeroy says: "In the first place, the rule only applies where a party is appealing as actor to a court of equity in order to obtain some equitable relief. . . . The rule may apply, and under its operation an equitable right may be secured or an equitable relief awarded to the defendant which could not be obtained by him in any other manner-that is, which a court of equity, in conformity with its settled methods, either would not, or could not, have secured or conferred or awarded by its decree in a suit brought for that purpose by him as the plaintiff." (1 Pomeroy's Equity Jurisprudence, sec. 386.) The doctrine is thus stated in Cooley on Taxation: "The rule of caveat emptor applies to tax purchasers. The purchaser at a taxsale will therefore lose what he had paid if his deed is subject to fatal infirmity. This is the rule unless the statute recognizes an equity in him and provides for it. . . . Unless the statute in terms gives it, the purchaser will have no lien on the land for the sum paid on the purchase." (Vol. 2, p. 1017.) The author here speaks concerning rights which the purchaser can enforce by action, not of limitations in equity upon the right of the owner to sue for a cancellation of the sale or deed. As to the latter, he says: "In vacating a tax or a sale for taxes as a cloud upon title it is proper to require the complainant to pay any sum that is either a legal or an equitable charge against him, and which will be affected by the decree. And this will be required although an action against him for such sum would be barred by the statute of limitations. If the tax were wholly illegal in its essentials, of course no such requirement could be made, for it would not be supported by any equity." (Vol. 2, p. 1455.) And further: "As in removing cloud, he who seeks relief against a tax-deed must pay or offer to pay whatever taxes, interest, costs, etc., are justly chargeable against the land, and payment will be required by the decree; otherwise, where the taxes were absolutely void." (Vol. 2, p. 1458.) These, we consider accurate statements of the true rule. A large number of cases are cited in

the foot notes. We have not deemed it necessary to examine them all. The following will be found to support the text: Farwell v. Harding, 96 Ill. 32; Gage v. Nichols, 112 Ill. 269; Phelps v. Harding, 87 Ill. 445; Barnett v. Cline, 60 Ill. 205; Adams v. Castle, 30 Conn. 404; Lancaster v. DuHadway, 97 Ind. 566; Morrison v. Jacoby, 114 Ind. 84, [14 N. E. 546, 15 N. E. 806]; Montgomery v. Trumbo, 126 Ind. 332, [26 N. E. 54]; Peckham v. Millikan, 99 Ind. 355; Knox v. Dunn, 22 Kan. 683; Brown v. Finley, 51 Neb. 468, [71 N. W. 34]; Dillon v. Merrian, 22 Neb. 152, [34 N. W. 344]; Wood v Helmer, 10 Neb. 65, [4 N. W. 968]; Boeck v. Merriam, 10 Neb. 201, [4 N. W. 962]; Powers v. Bank, 15 N. Dak. 469, [109 N. W. 361]; Lohr v. George, 65 W. Va. 249, [64 S. E. 609]; Toothman v. Courtney, 62 W. Va. 185, [58 S. E. 915]. We have found no well considered case to the contrary. For statements of the general rule that "he who seeks equity must do equity," see 1 Story's Equity Jurisprudence, 13th ed., sec. 64e; 1 Pomeroy's Equity Jurisprudence, secs. 385, 388.

In view of this weight of authority and the inconsistency of our own cases on the subject, the decisions which deny the applications of the rule to tax cases should be deemed overruled, and the correct principle declared. Where the owner comes into equity asking equitable relief to remove or cancel a tax-deed or sale as a cloud upon his title, or to obtain a judgment which, in effect, will invalidate such sale or deed, the court should refuse any relief except upon the condition that he first repay to the tax purchaser, or his grantee or assignee, the taxes, penalties, interest, and costs justly chargeable upon the land and which the purchaser has paid at the sale, or afterward upon the faith of it, with legal interest from the time of such payment, less rents received, if any, if the purchaser has been in possession.

Respondent suggests that this rule is applicable only in suits which, under the division of actions between courts of law and equity formerly prevailing in England, would have been cognizable only in equity, that an action to determine adverse claims under section 738 of the Code of Civil Procedure, being an action authorized by statute, is an action at law, in which the equity rule cannot be enforced. It is sufficient to say on this point that the decisions hold that the rule applies in such actions to the same extent as in suits of

the character formerly cognizable in equity to remove a cloud or cancel an instrument. (Benson v. Shotwell, 87 Cal. 60, [25 Pac. 249]; Hancock v. Plummer, 66 Cal. 338, [5 Pac. 514]; Brandt v. Wheaton, 52 Cal. 433.)

It will be observed from the statements of the rule above given, that the defendant who has removed encumbrances or paid claims which the plaintiff ought justly to repay to him as a condition of obtaining the equitable relief sought by the suit, is entitled to interest on the sums so paid, and to have the repayment secured to him in some manner. This may be done either by requiring such repayment to be made or deposited in court before giving the judgment, or by inserting in the judgment a clause that it shall not take effect until such repayment be made. The judgment in the present case did not do either. The latter mode may properly be adopted in cases where the defendant is directed by the judgment to do something himself, as to execute a prescribed deed, or release, or where the judgment directs the officers of the court to cancel a deed or enter satisfaction of a lien of record, as and for the defendant in case he refuses. But in cases where the judgment declares and adjudges the title outright, the more convenient and effective method is to require restitution to be made by the plaintiff before or at the time of rendering the judgment. The defendant, Hotchkiss, was entitled to a judgment allowing interest in addition to the principal and by inserting a clause which would have made his claim for restitution effectual and the judgment conditional and dependent upon reimbursement to him.

Appellant makes the further objection that the plaintiff's evidence did not show that the title to the land was vested in him. This objection is based on alleged defects in the certificates of acknowledgment of two deeds comprising a part of plaintiff's chain of title. The objections are without merit. In one of the deeds the officer certified that the grantor "acknowledged to me" the execution of the deed. The statutory form for such certificates in force at that time did not contain the words "to me." The effect is the same and variation is immaterial. The other deed was acknowledged before a notary public of the state of Washington. Our law authorizes a notary of another state to take acknowledgments of deeds conveying lands within this state. (Civ. Code, sec.

1182, subd. 4.) Section 1189 of the Civil Code provides that an acknowledgment taken without the state in the manner provided by the law where it is made is good in this state. It further provides that the certificate of the clerk of a court of record of the county where such foreign acknowledgment is made, to the effect that such acknowledgment was taken in accordance with the laws of the place where it was made, is sufficient proof of such conformity. Compliance with this formality was not made in the case of this deed. The provision of section 1189 in regard to certificates of the clerk is applicable only to cases where the certificate of acknowledgment does not show an acknowledgment which would be good under our own statutes. If it would be good here, and the officer is one authorized by our statutes to take proof of acknowledgments without the state, no certificate from the clerk of the other state is required. The notary certified that the grantor "appeared before me, being personally known to me to be the same person described in and who executed the foregoing instrument and acknowledged that he signed and sealed the same as his free and voluntary act and deed for the uses and purposes therein mentioned." As acknowledgment seldom succeeds, or even accompanies, actual delivery to the grantee, it is clear the word "executed" in the statutory form prescribed (Civ. Code, sec. 1189), should not be construed to include such actual delivery. But the words used, taken altogether, mean substantially the same thing as the word "execution" and the certificate is sufficient. (Jamison v. Jamison, 3. Whart. 471, [31 Am. Dec. 536]; McIntire v. Board, 5 Binn. 296, [6 Am. Dec. 417]; Halls v. Thompson, 1 Sm. & M. (Miss.) 443, 489; Davar v. Cardwell, 27 Ind. 478; Woodruff v. Garner, 27 Ind. 4, [89 Am. Dec. 477].) Substantial compliance with the statute is sufficient and if the words used are equivalent in meaning to those prescribed, the certificate is good. (Reed v. Bank of Ukiah, 148 Cal. 96, [82 Pac. 845]; Duckworth v. Watsonville etc. Co., 150 Cal. 534, [89 Pac. 338].) The fact that it also certified to the sealing of the instrument does not vitiate the acknowledgment, although such sealing is unnecessary in this state.

There are no other points requiring notice. The record shows the amounts paid by the defendant as taxes on the lands to be $327.58. This does not include interest. It includes