JohnsoN, President,
announced the opinion of the Court:
In May, 1875, the plaintiff, Henry W. Jones, filed his bill in the circuit court of Wood county, to set aside a tax-deed, executed on the 26th day of August, 1874, by the clerk of the county court of Wood county to the defendant, William Dils, “ because,” among other reasons alleged in the bill, “ the land was not in truth and fact delinquent for the non-payment of the said taxes for the year 1864; that the return so made, if any was made, was false and untrue; that in fact the taxes were paid for that year, &c.” It is further claimed, that the said sale and deed are void, because the return of the sales of real estate within the county of Wood, made in the month of September, 1871, for the non-payment of taxes due thereon, is insufficient in this, that it does not contain the caption prescribed by law, showing the several columns required to be set forth in the memorandum of real estate sold, &c,, as required in sections ten and twelve of chapter thirty-one of the Code of West Virginia; that the said list does not show as to the one hundred acres alleged to have been sold what estate was held therein, and what was sold* whether the fee or a less estate; and that it returns the whole one hundred acres as sold, while the deed recites a sale of eighty acres.
The defendant, Dils, answered the bill and among other things says : “That notwithstanding the plaintiff files what he claims to be a receipt for the taxes for the year 1864 for the said tract of land, the sheriff, who gave that receipt, had no right to give any such receipt any more than a private individual, he, the said sheriff, having surrendered and parted with all his legal control of the same by returning the same delinquent on the said — day of June, 1865. He denies [762]*762therefore, that that was any payment of the taxes. He avers, that if the taxes were paid at all, it was to the sheriff after the land had been returned delinquent, and before the land had been returned to the sheriff to be sold, and at a time when the sheriff had no legal right to receive them.” The answer also avers, that the sale was regular, as the statute required, and denies, that any of the technical objections relied upon by the plaintiff are sufficient to avoid the deed.
The list of sales returned by the sheriff and made an exhibit with the bill is as follows :
A List of Bsal Estate within the County of Wood sold in the month of September, 1871, for the non-payment of Taxes thereon for the years 1860,1861,1862,1863,1864, 1865,1866,1867,1868, 1869, 1870:
It will be observed, that this list reports the whole one hundred acres sold, while the deed recites, that eighty acres only were sold and conveyed that quantity only.
It was clearly proved in the cause by II. H. Dils, who was sheriff of Wood county in 1864-5, and no effort was made to contradict it, that Jones came into his office in 1865 and paid him the taxes for that year and took up. the tax-bill for that year; that at that time the land-books for 1864 arid 1865 were in his office. Jones enquired if there were any back taxes on the land; that on examination he found, that the tax for 1864 had not been paid, and the book did not show, that the land had been returned delinquent, and that he did not know it had been so returned, he received from Mr. Jones the tax for 1864 and gave him a receipt therefor on the back of the tax-bill for 1865, which Jones had already paid ; that the tax-bill for 1864 was in the'hands of one of his deputies. The witness said the returning the land delinquent was a mistake. Itwasnotthe intention to return it delinquent. He knew there was property on the land, out of which the taxes could be made. The deputy had already returned the land delinquent, as appears from the record. The sheriff further testi[763]*763fied, that he paid all the taxes for 1864-5 to the auditor of the State and took his receipt for the same.
Jones testified to having paid the taxes for 1864 to sheriff Dils. He became, the owner of the land in 1865 on the 10th of July. The amount of taxes paid to the sheriff for 1864, and by him paid into the State-treasury, w’as $4.10; and the amount, for which the land was charged and sold in 1871, was $3.25 including interest, damages, &c.
On the 12th day of April, 1877, the court upon afinal hearing dismissed the plaintiff’s bill with costs. Is there error in this decree?
Section 10 of chapter 31 of the Code provides, that “ the sheriff or collector on receiving from any purchaser the amount of purchase-money shall grant to him a receipt for the same to the following effect.” Then follows the memorandum with appropriate columns, the caption of one of which is, “Estate held therein.” The 12th section provides that, “the sheriff or collector shall make out a list of the sales with the following caption thereto: ‘List of real estate within the county of --, sold in the month (or months) of-, eighteen hundred and —, for the nonpayment of taxes thereon for the year -.’ Underneath shall be the several columns mentioned in the 10th section with a caption to each column ; and there shall be an additional column showing the date of each sale, unless 'the sales were all in one day, in which case the day may be mentioned in the caption.” The 11th section prescribes the oath, that shall be subjoined to the list; and the 14th section requires, that “ the list with the certificate of the oath attached shall within two days after the completion of such sale be returned to the recorder of the county, who shall twenty days thereafter make an accurate copy thereof in a well bound book and transmit the original to the auditor.”
Now, if there are omitted from the list some of the positive requirements of the statute, can it be called a mere irregularity which will not affect the sale? To say that the Legislature has enacted that certain proceedings are necessary to the validity of a sale of real estate for taxes and at the same time to say that the omission of any of such proceedings is mere irregularity is absurd. If any of such pro[764]*764ceedings may be omitted, why not all ? How can we say which is material and which is not ? The Legislature prescribes the rule, not the courts; and we must regard all the requirements of the statute alike essential. Whether the thing required has been substantially done or not is a question for the courts. In Dequasie v. Harris, 16 W. Va. 360, this Court by GkbbN, PbehidjeNT, said : “The failure of the report of the sheriff to show, in whose name the land in controversy was taxed for the year 1870 for the delinquency to pay the taxes of that year, being in part the basis of the sale, was nota mere irregularity, which might be cured either by this provision in the Code or in the Acts of 1872-3, but it was an omission in a material and essential particular, which could not be cured by the recitals in the deed, and which necessarily vitiated the tax-deed.” The omission in the report of the sheriff of lands sold for non-payment of taxes to state, what estate was held therein, as required by section 12 of chapter 31 of the Code, vitiates a sale under said chapter.
The only authority for making the deed is the sale of the land and the conforming to the requirements of the statute thereafter. The deed must conform to the sale; and if the report of the sheriff shows, that one hundred acres were sold, this is no authority for executing a deed for a greater or less number of acres; and if such a deed is executed, it is void.
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JohnsoN, President,
announced the opinion of the Court:
In May, 1875, the plaintiff, Henry W. Jones, filed his bill in the circuit court of Wood county, to set aside a tax-deed, executed on the 26th day of August, 1874, by the clerk of the county court of Wood county to the defendant, William Dils, “ because,” among other reasons alleged in the bill, “ the land was not in truth and fact delinquent for the non-payment of the said taxes for the year 1864; that the return so made, if any was made, was false and untrue; that in fact the taxes were paid for that year, &c.” It is further claimed, that the said sale and deed are void, because the return of the sales of real estate within the county of Wood, made in the month of September, 1871, for the non-payment of taxes due thereon, is insufficient in this, that it does not contain the caption prescribed by law, showing the several columns required to be set forth in the memorandum of real estate sold, &c,, as required in sections ten and twelve of chapter thirty-one of the Code of West Virginia; that the said list does not show as to the one hundred acres alleged to have been sold what estate was held therein, and what was sold* whether the fee or a less estate; and that it returns the whole one hundred acres as sold, while the deed recites a sale of eighty acres.
The defendant, Dils, answered the bill and among other things says : “That notwithstanding the plaintiff files what he claims to be a receipt for the taxes for the year 1864 for the said tract of land, the sheriff, who gave that receipt, had no right to give any such receipt any more than a private individual, he, the said sheriff, having surrendered and parted with all his legal control of the same by returning the same delinquent on the said — day of June, 1865. He denies [762]*762therefore, that that was any payment of the taxes. He avers, that if the taxes were paid at all, it was to the sheriff after the land had been returned delinquent, and before the land had been returned to the sheriff to be sold, and at a time when the sheriff had no legal right to receive them.” The answer also avers, that the sale was regular, as the statute required, and denies, that any of the technical objections relied upon by the plaintiff are sufficient to avoid the deed.
The list of sales returned by the sheriff and made an exhibit with the bill is as follows :
A List of Bsal Estate within the County of Wood sold in the month of September, 1871, for the non-payment of Taxes thereon for the years 1860,1861,1862,1863,1864, 1865,1866,1867,1868, 1869, 1870:
It will be observed, that this list reports the whole one hundred acres sold, while the deed recites, that eighty acres only were sold and conveyed that quantity only.
It was clearly proved in the cause by II. H. Dils, who was sheriff of Wood county in 1864-5, and no effort was made to contradict it, that Jones came into his office in 1865 and paid him the taxes for that year and took up. the tax-bill for that year; that at that time the land-books for 1864 arid 1865 were in his office. Jones enquired if there were any back taxes on the land; that on examination he found, that the tax for 1864 had not been paid, and the book did not show, that the land had been returned delinquent, and that he did not know it had been so returned, he received from Mr. Jones the tax for 1864 and gave him a receipt therefor on the back of the tax-bill for 1865, which Jones had already paid ; that the tax-bill for 1864 was in the'hands of one of his deputies. The witness said the returning the land delinquent was a mistake. Itwasnotthe intention to return it delinquent. He knew there was property on the land, out of which the taxes could be made. The deputy had already returned the land delinquent, as appears from the record. The sheriff further testi[763]*763fied, that he paid all the taxes for 1864-5 to the auditor of the State and took his receipt for the same.
Jones testified to having paid the taxes for 1864 to sheriff Dils. He became, the owner of the land in 1865 on the 10th of July. The amount of taxes paid to the sheriff for 1864, and by him paid into the State-treasury, w’as $4.10; and the amount, for which the land was charged and sold in 1871, was $3.25 including interest, damages, &c.
On the 12th day of April, 1877, the court upon afinal hearing dismissed the plaintiff’s bill with costs. Is there error in this decree?
Section 10 of chapter 31 of the Code provides, that “ the sheriff or collector on receiving from any purchaser the amount of purchase-money shall grant to him a receipt for the same to the following effect.” Then follows the memorandum with appropriate columns, the caption of one of which is, “Estate held therein.” The 12th section provides that, “the sheriff or collector shall make out a list of the sales with the following caption thereto: ‘List of real estate within the county of --, sold in the month (or months) of-, eighteen hundred and —, for the nonpayment of taxes thereon for the year -.’ Underneath shall be the several columns mentioned in the 10th section with a caption to each column ; and there shall be an additional column showing the date of each sale, unless 'the sales were all in one day, in which case the day may be mentioned in the caption.” The 11th section prescribes the oath, that shall be subjoined to the list; and the 14th section requires, that “ the list with the certificate of the oath attached shall within two days after the completion of such sale be returned to the recorder of the county, who shall twenty days thereafter make an accurate copy thereof in a well bound book and transmit the original to the auditor.”
Now, if there are omitted from the list some of the positive requirements of the statute, can it be called a mere irregularity which will not affect the sale? To say that the Legislature has enacted that certain proceedings are necessary to the validity of a sale of real estate for taxes and at the same time to say that the omission of any of such proceedings is mere irregularity is absurd. If any of such pro[764]*764ceedings may be omitted, why not all ? How can we say which is material and which is not ? The Legislature prescribes the rule, not the courts; and we must regard all the requirements of the statute alike essential. Whether the thing required has been substantially done or not is a question for the courts. In Dequasie v. Harris, 16 W. Va. 360, this Court by GkbbN, PbehidjeNT, said : “The failure of the report of the sheriff to show, in whose name the land in controversy was taxed for the year 1870 for the delinquency to pay the taxes of that year, being in part the basis of the sale, was nota mere irregularity, which might be cured either by this provision in the Code or in the Acts of 1872-3, but it was an omission in a material and essential particular, which could not be cured by the recitals in the deed, and which necessarily vitiated the tax-deed.” The omission in the report of the sheriff of lands sold for non-payment of taxes to state, what estate was held therein, as required by section 12 of chapter 31 of the Code, vitiates a sale under said chapter.
The only authority for making the deed is the sale of the land and the conforming to the requirements of the statute thereafter. The deed must conform to the sale; and if the report of the sheriff shows, that one hundred acres were sold, this is no authority for executing a deed for a greater or less number of acres; and if such a deed is executed, it is void. There was no authority in the recorder of Wood county to make a deed for any other tract of land, or any part of tracts other than precisely what was sold; therefore when the report shows, that the whole tract of one hundred acres was sold, there was no authority in the recorder to execute a deed for eighty acres. The authority for making the deed is in section 19, which provides: “ After the expiration of the said one year the purchaser of any real estate so sold and not redeemed shall obtain from the recorder of the county, in which the sale was made, a deed conveying the same, in which shall be recited all the material circumstances appearing in his office in relation to the sale. * * If the sale be of a part of a tract of land, the deed shall refer particularly to the plat and description returned and the order of the recorder thereon ; and if the sale be of an entire tract of land, it shall re[765]*765fer to the report made and the order thereupon. “The deed here recites, that eighty acres were sold when the report of the sheriff shows that the entire tract of one hundred acres was sold.
It is also claimed, that the taxes were paid. The only reason why ex parte proceedings are allowed in selling lands delinquent for taxes is the fact, that the State must have her revenue, and that justifies her in pursuing the usual mode for the collection of the taxes due her. But no man’s land will be sold, unless there has been a failure to pay the tax thereon. The statute declares section 26, chapter 117, Acts 1872-3, which is the same as section 26 of chapter 31 of the Code of 1868, that “if it be alleged in any suit or proceeding, that the taxes, for the non-payment of which the real estate was sold, were not in arrear, the party making such allegation must establish the truth thereof by proving that the taxes were paid.” The 27th section provides for instituting a suit in equity for the purpose of having the deed declared void, because the taxes were paid.
Is there any doubt in this case, that the taxes were actually paid into the State-treasury before the State sold the land to raise these very taxes? In my mind there is not the slightest doubt. The taxes, and more than the taxes due at the time of the sale, including interest and damages even, had been paid into the State-treasury years before the sale was made. But it is objected, that the land had been returned delinquent, and the property should have been redeemed in the regular way by paying the taxes, interest, &c. to the auditor, or to the sheriff after the list had been sent down to the sheriff for a sale of the land. The answer to this is, that the land-owner had been misled by the servant of the State, who received his taxes and led him to believe, that the land had not been returned delinquent; and the statute does not limit his right to have the deed set aside, where the taxes have been paid into the State-treasury in the regular way. If the taxes were actually paid into the State-treasury before the sale of the land, then the State had no right to sell the land, and the sale conferred no title. It would be a great hardship on a man to have his land sold for taxes, when he had actually paid the taxes, and of course was thrown off his guard, and paid no [766]*766attention to the delinquent lists. This was the condition of Jones. He had no idea his land had been returned delinquent; he knew he had paid the taxes for the year 1864, and of course he rested in supposed security. It would be unjust, that he should lose his laud under these circumstances, when he has not been in default, being misled by the agent of the State, who gave him to understand that his land had not been returned delinquent', and received his taxes and paid them into the State-treasury before the sale. The State deals in no such harsh way with her citizens. Having been paid her taxes she ought not to have sold the land. The appellee cannot put himself in the position of an innocent purchaser, any more than a junior patentee could do. If the land had not been forfeited, the State had no title to convey.
The decree must be reversed with costs, to the appellant, and a decree here entered, annulling said deed.