Cope, C. J. delivered the opinion of the Court—Norton, J. concurring.
This is an appeal for an order granting a writ of assistance to put the plaintiff in possession of an undivided interest in certain property in the City of Sacramento. The proceeding was instituted *378under the fifth section of an Act of the Legislature, passed April 3d, 1860, entitled “An Act to provide for the Collection of Delinquent Taxes in the City and County of Sacramento.” The section provides, that “ any deed derived from a sale of real property under this act shall be conclusive evidence of title, except as against actual frauds and prepayment, of the taxes, and shall entitle the holder thereof to a writ of assistance from' the District Court to obtain possession of such property.” The sale was made by one Marshall, who was then Sheriff of Sacramento County, and the deed was executed by his deputy after the expiration of his term of office and during his absence from the State.
It is objected that the deputy had no authority to execute the deed; and the Act of 1858, “ for the relief of purchasers at sales of real estate by public officers,” is referred to as sustaining the objection. The act (Sec. 1) provides, that “ where lands have been or may hereafter be sold by a Sheriff, or other authorized officer, for taxes, or under an execution or order of sale, the purchaser or his assigns may be entitled to a deed, and the Sheriff or other officer who made the sale is dead, or absent from the State, or in any wise disqualified, it shall or may be lawful for the successor of the said Sheriff, or other officer, to make such deed to such purchaser, his assignee or assignees, in the same manner and with the same effect, as if made by the officer malting such sale.” ' Under the law as it stood prior to the passage of this act, the successor of the officer making the sale had no power to execute the deed, and the effect of the act is simply to confer upon him the power to do so. It takes nothing from the authority of the officer who made the sale; and his power to execute the deed, either by deputy or in person, continues as before. The object was to relieve the purchaser and not to limit the power of the officer. In case of death or disqualification, of course the deed must be executed by the successor, and it may be executed by him in the case of absence. In the latter case, however, his authority is not exclusive, unless the absence be such as to amount to a disqualification. The whole subject is a matter of statutory regulation, and there is nothing in the act in question operating as a repeal or modification of previous statutes.
*379It is objected further that at the time of the sale the parties were tenants in common of the property, and that the plaintiff was the holder of a mortgage upon the interest of the defendant. These objections would be decisive of the case if it were not for the fact that the statute under which the sale was made gives conclusive effect to the deed, except as against actual frauds and prepayment of the taxes. The sale was made on a judgment regularly obtained, and there is no doubt that under the statute the title passed, and that the plaintiff has a right to the possession of the property. As a general rule, neither a tenant in common nor a mortgagee can acquire a tax title, and set it up as against his co-tenant or mortgagor, but this rule rests upon'the doctrine of constructive frauds, and is not applicable in a case like the present, where the fraud must be' actual. It is possible that in equity the purchase would be regarded as a trust, and relief administered on that ground, but in this proceeding the defendant cannot avoid the effect of the deed. He must present a proper case for equitable interference before the assistance of the Court can be invoked in his behalf. His defense is based upon the invalidity of the deed, and under the statute the deed cannot be rejected as void.
Other objections are interposed, but they are not well taken.
The order is affirmed.