Baker, J.
Trespass and ejectment. A decision for the defendant on the merits of this case was rendered by a justice of the superior court sitting without a jury. Thereafter each party duly prosecuted a bill of exceptions to this court and the case is now before us on these bills.
Plaintiff’s exceptions numbered 1, 2 and 3 are not pressed. The exceptions it relies on are: First, an exception to the overruling by the trial justice of its demurrer to defendant’s second special plea; and second, an exception to the final decision of the trial justice in favor of the defendant on his first and second special pleas, after a hearing, on the merits of the ease. The defendant’s exception is to the decision of said justice in sustaining the plaintiff’s demurrer to his third special plea. By reason of the issues on which the case was heard and decided it is unnecessary to refer to certain other pleadings appearing therein.
The real estate, the title and right to possession of which is in dispute in the instant case, is situated in Providence and, according to the tax assessors’ records of said city, comprises two lots of land with improvements thereon. Certain related questions bearing upon the title to such real estate were before this court and were determined in
Allen
v.
Bonded Municipal Corp.,
62 R. I. 101, 153. The present plaintiff, a Rhode Island corporation, now claims to be the owner of said lots and entitled to the possession thereof by reason of the conveyance to it of such lots by a deed dated October 13, 1939, made and executed by Bonded Municipal Corporation, a foreign corporation. It appears that the latter, as highest bidder, purchased the real estate in question at a sale thereof held on September 26, 1935 by the city of Providence for the collection of unpaid taxes assessed thereon June 15, 1933. As such purchaser, Bonded Municipal Corporation received from said city two deeds, each of which was dated October 29, 1935 and was signed by the city treasurer. These two deeds, each describing a separate and distinct lot, covered the real estate in dispute. All of these deeds were recorded in the records of land evidence of said city.
The defendant, who owned and was in possession of the said real estate at the time of the tax sale and still continues in such possession, and who has never recognized as valid the proceedings in connection with such sale, in his first special plea alleges title and right of possession to the property in dispute in himself, and denies that the plaintiff has any title thereto or right of possession therein. The defendant’s second special plea sets out that the title of plaintiff’s grantor, Bonded Municipal Corporation, to the real estate involved was invalid and ineffective “because the deed of the Tax Collector of the City of Providence to said Bonded Municipal Corporation . . . was not made, executed and delivered by the said Tax Collector to the said Bonded Municipal Corporation within ten days after the date of the
alleged tax sale- held on September 26, 1935, as required by the statutes in such cases made and provided . . . The third special plea is to the effect that said Bonded Municipal Corporation at the time of the tax sale, and of the execution and delivery of the tax deed in question, was a foreign corporation and had not at such times complied with the provisions of certain sections of the statutes of this state before carrying on business here, as such statutes required.
At the trial the defendant submitted proof in support of the allegations contained in said first and second pleas. In meeting the first special plea, however, the plaintiff’s contention was that the evidence showed that it had title and right to possession of the property under its tax deeds. As to the second special plea the plaintiff maintained that no defense at law to its claim of title and right to possession was set up by such plea. The matters raised by the first and second pleas may be considered together in passing upon plaintiff’s exception to the decision of the trial justice in overruling the plaintiff’s demurrer to the second plea and to his decision for the defendant on the merits of the case itself. The determinative issue in this case is whether or not, under the provisions of the statute then applicable, the tax deeds in question had to be made, executed and delivered by the city to the purchaser, Bonded Municipal Corporation, within ten days after the tax sale in question.
The statute controlling in the instant case, general laws 1923, chapter 62, sec. 16, is as follows: “No entry upon the land by the collector shall be deemed necessary; but the collector, in all cases of sales of real estate, shall make a return of all his proceedings under oath into the town clerk’s office, within ten days after the sale; which return shall be evidence of the facts therein stated.” This statute, however, has since been amended materially several times and it now no longer appears in the above form.
The plaintiff earnestly maintains that, properly construed, the above statute does not require that, in order for a tax
deed to be valid, it must be executed and delivered within ten days after the tax sale at which the property sought to be conveyed was sold, which is the contention advanced by the defendant and adopted by the trial justice.'
This court has had occasion to consider said statute in two reported cases. In
Thurston
v.
Miller,
10 R. I. 358, questions were raised regarding the sufficiency of the advertising of a tax sale, and regarding the sufficiency of the return of his proceedings made by the tax collector into the office of the city clerk within ten days after such sale. In that case apparently the tax deed in question was executed and delivered before the return was made. In discussing the issues raised, and in referring to the right of redemption in this state, the court, by way of
dictum,
made the following statement at page 363 of its opinion: “The redemption here is from the purchaser, and not from the collector. The deed may be made at any time after the sale, and before the time limited for the collector’s return.”
In
Clark
v.
Baker,
47 R. I. 1, the evidence showed that, following the holding of the tax sales under consideration in that case, nothing was done by any of the interested parties for approximately thirteen months. Then certain checks, apparently in satisfaction of the bids made at the tax sales, came into possession of the tax collector, who then executed his deeds covering the properties involved. The court in that case did not feel it necessary to pass directly upon the question now before us, but stated at page 5 of its opinion: “The collection of the price bid and the giving of the deed are. certainly vital parts of the tax collector’s proceedings but the present case does not call for a decision concerning the giving of a deed within ten days. Whether or not the deed must be executed and delivered within ten days from the time of sale, the statute fairly construed calls for the payment of the purchase money before the return is made.”
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Baker, J.
Trespass and ejectment. A decision for the defendant on the merits of this case was rendered by a justice of the superior court sitting without a jury. Thereafter each party duly prosecuted a bill of exceptions to this court and the case is now before us on these bills.
Plaintiff’s exceptions numbered 1, 2 and 3 are not pressed. The exceptions it relies on are: First, an exception to the overruling by the trial justice of its demurrer to defendant’s second special plea; and second, an exception to the final decision of the trial justice in favor of the defendant on his first and second special pleas, after a hearing, on the merits of the ease. The defendant’s exception is to the decision of said justice in sustaining the plaintiff’s demurrer to his third special plea. By reason of the issues on which the case was heard and decided it is unnecessary to refer to certain other pleadings appearing therein.
The real estate, the title and right to possession of which is in dispute in the instant case, is situated in Providence and, according to the tax assessors’ records of said city, comprises two lots of land with improvements thereon. Certain related questions bearing upon the title to such real estate were before this court and were determined in
Allen
v.
Bonded Municipal Corp.,
62 R. I. 101, 153. The present plaintiff, a Rhode Island corporation, now claims to be the owner of said lots and entitled to the possession thereof by reason of the conveyance to it of such lots by a deed dated October 13, 1939, made and executed by Bonded Municipal Corporation, a foreign corporation. It appears that the latter, as highest bidder, purchased the real estate in question at a sale thereof held on September 26, 1935 by the city of Providence for the collection of unpaid taxes assessed thereon June 15, 1933. As such purchaser, Bonded Municipal Corporation received from said city two deeds, each of which was dated October 29, 1935 and was signed by the city treasurer. These two deeds, each describing a separate and distinct lot, covered the real estate in dispute. All of these deeds were recorded in the records of land evidence of said city.
The defendant, who owned and was in possession of the said real estate at the time of the tax sale and still continues in such possession, and who has never recognized as valid the proceedings in connection with such sale, in his first special plea alleges title and right of possession to the property in dispute in himself, and denies that the plaintiff has any title thereto or right of possession therein. The defendant’s second special plea sets out that the title of plaintiff’s grantor, Bonded Municipal Corporation, to the real estate involved was invalid and ineffective “because the deed of the Tax Collector of the City of Providence to said Bonded Municipal Corporation . . . was not made, executed and delivered by the said Tax Collector to the said Bonded Municipal Corporation within ten days after the date of the
alleged tax sale- held on September 26, 1935, as required by the statutes in such cases made and provided . . . The third special plea is to the effect that said Bonded Municipal Corporation at the time of the tax sale, and of the execution and delivery of the tax deed in question, was a foreign corporation and had not at such times complied with the provisions of certain sections of the statutes of this state before carrying on business here, as such statutes required.
At the trial the defendant submitted proof in support of the allegations contained in said first and second pleas. In meeting the first special plea, however, the plaintiff’s contention was that the evidence showed that it had title and right to possession of the property under its tax deeds. As to the second special plea the plaintiff maintained that no defense at law to its claim of title and right to possession was set up by such plea. The matters raised by the first and second pleas may be considered together in passing upon plaintiff’s exception to the decision of the trial justice in overruling the plaintiff’s demurrer to the second plea and to his decision for the defendant on the merits of the case itself. The determinative issue in this case is whether or not, under the provisions of the statute then applicable, the tax deeds in question had to be made, executed and delivered by the city to the purchaser, Bonded Municipal Corporation, within ten days after the tax sale in question.
The statute controlling in the instant case, general laws 1923, chapter 62, sec. 16, is as follows: “No entry upon the land by the collector shall be deemed necessary; but the collector, in all cases of sales of real estate, shall make a return of all his proceedings under oath into the town clerk’s office, within ten days after the sale; which return shall be evidence of the facts therein stated.” This statute, however, has since been amended materially several times and it now no longer appears in the above form.
The plaintiff earnestly maintains that, properly construed, the above statute does not require that, in order for a tax
deed to be valid, it must be executed and delivered within ten days after the tax sale at which the property sought to be conveyed was sold, which is the contention advanced by the defendant and adopted by the trial justice.'
This court has had occasion to consider said statute in two reported cases. In
Thurston
v.
Miller,
10 R. I. 358, questions were raised regarding the sufficiency of the advertising of a tax sale, and regarding the sufficiency of the return of his proceedings made by the tax collector into the office of the city clerk within ten days after such sale. In that case apparently the tax deed in question was executed and delivered before the return was made. In discussing the issues raised, and in referring to the right of redemption in this state, the court, by way of
dictum,
made the following statement at page 363 of its opinion: “The redemption here is from the purchaser, and not from the collector. The deed may be made at any time after the sale, and before the time limited for the collector’s return.”
In
Clark
v.
Baker,
47 R. I. 1, the evidence showed that, following the holding of the tax sales under consideration in that case, nothing was done by any of the interested parties for approximately thirteen months. Then certain checks, apparently in satisfaction of the bids made at the tax sales, came into possession of the tax collector, who then executed his deeds covering the properties involved. The court in that case did not feel it necessary to pass directly upon the question now before us, but stated at page 5 of its opinion: “The collection of the price bid and the giving of the deed are. certainly vital parts of the tax collector’s proceedings but the present case does not call for a decision concerning the giving of a deed within ten days. Whether or not the deed must be executed and delivered within ten days from the time of sale, the statute fairly construed calls for the payment of the purchase money before the return is made.”
The court then held that the statute had not been complied .with, and that no title was conferred by the tax deeds in question. Further, the court in its opinion discussed the case of
Thurston v. Miller, supra,
and in particular referred to and construed the language we have hereinbefore quoted from that last-mentioned case. In the
Clark
case the court also used the following language at page 5 of its opinion: “There is much in Section 16 to lead one to believe that the statute contemplated a completed transaction in ten days including the giving of a deed.”
The plaintiff argues that the observations of the court in the above cases are merely
dicta
on the issue now before us and, therefore, are not necessarily binding in the present case. In addition, it calls our attention to the fact that in sec. 16,
supra,
there is no specific reference to the making or delivery of a deed, or to the fixing of any time for so doing. This is correct. However, an examination of chap. 62,
supra,
discloses no other section therein which fixes directly, or even by implication, any such time, and if one existed when the deeds in the instant case were made, it would appear to be impliedly provided for under a reasonable construction of sec. 16,
supra.
That the legislature must have intended that said section contain by implication some limitation of time for the execution and delivery of a tax deed seems a reasonable deduction. Otherwise it might become difficult to fully safeguard the rights of the owner of the property sold, in regard to the matter of redemption, and also to give effect to all parts of the statute. In our opinion, it cannot successfully be maintained that it was the legislative intent that a tax collector should have an
indefinite
time for executing and delivering his deed.
The question of redemption is discussed in
Clark
v.
Baker, supra,
where it is pointed out that an owner, whose real estate has been sold for taxes, has a statutory right to redeem it within a fixed time by paying certain sums, not to
the tax collector, but to the purchaser at the tax sale. Obviously, the latter must have paid to the tax- collector the amount bid, before the owner is in a position to exercise his statutory right of redemption.
Clark
v.
Baker, supra.
Since it was held in that case that, by sec. 16,
supra,
the purchaser must pay the tax collector the amount of the bid within ten days after the sale, it seems reasonable to hold that the latter should execute and deliver his deed within the same period as part of
all
his proceedings.
Usually a purchaser of real estate, apart from statutory regulation, is entitled to insist upon the delivery of the deed at the time when he pays the purchase price of the property. However, considering the many practical differences between the usual sale and a tax sale, the legislature apparently thought it reasonable to extend to the limit of ten days the time for the tax collector to deliver the deed as a vital part of
all
his proceedings. At least this is a reasonable interpretation, in our opinion, of the language and purpose of the statute, especially since this statute is in derogation of the common law.
After considering the statute now before us* in order to ascertain if possible its intent and meaning and to give it complete effect, and after weighing the statements' made in the two-cases cited above in which that statute was discussed, we are of the opinion that, reasonably construed, such statute requires that a tax deed must be executed and delivered within ten days after the tax sale in question. That the statute might be so construed, if the point was ever definitely raised, was indicated by the court in the
dicta
in the two cases above cited. Considerable time has passed since those decisions were rendered and to our knowledge such
dicta
have not been questioned, but apparently have been acquiesced in. No change was made in the statute until recently. While such a course of conduct is not in any way controlling on the court, nevertheless it seems proper to give
it consideration when the court is called upon to construe the statute.
We find that the trial justice was correct in overruling plaintiff’s demurrers to the first and second special pleas, and in his decision that the tax deeds in the instant case were invalid because they were not executed and delivered within the time above stated, the sale in question having been held September 26, 1935 and the deeds having been executed October 29, 1935, and no special facts or circumstances appearing in aid of the plaintiff.
The question now before us has been clarified by the passage of public laws 1939, chap. 695. The parties in the instant case have argued that the pertinent part of that chapter supports their respective positions in regard to the construction which should be placed upon sec. 16,
supra.
In our opinion, however, this very recent statute is of no assistance in construing and ascertaining the meaning of said section.
In view of our present holding that the construction of sec. 16,
supra,
contended for by the defendant is correct, and that the tax deeds in question are invalid, we find it unnecessary to consider and pass upon the defendant’s exception.
The plaintiff’s exceptions are all overruled, and the case is remitted to the superior court for the entry of judgment for the. defendant on the decision.