By the Court, Sanderson, C. J.
This is an action for the possession of land and for the recovery of mesne profits. The complaint is in the usual form, not verified. The answer contains a denial of all the material facts stated in the complaint, and an averment of title in the defendant. The plaintiff recovered judgment for the posses[44]*44sion of the land, and twenty-one hundred dollars rents and profits.
The defendant moved for a new trial, which was denied. The appeal is from the judgment and from the order denying ,a new trial.
• I. In support of his case the plaintiff produced a patent from the Government of the United States, and several mesne conveyances, showing a regular chain of title from the patentees to himself, and proved that the land in controversy was included within the calls of the patent and mesne conveyances, and also proved the value of the use and occupation.
The defendant, by way of set-off to the plaintiff’s claim for mesne profits, offered testimony as to the value of his improvements, which, upon the objection of the plaintiff, was excluded by the Court. This ruling of the Court is assigned as error.
No claim for improvements is made in the answer, and for that reason alone the testimony was properly excluded. A. defendant in ejectment, who desires to set off the value of his improvements against the mesne profits, must assert his right by proper averments in his answer, or he is precluded from doing so at the trial. In such cases, the value of the improvements constitutes a counter claim, or set-off, and in order to make it available as a defense, it must, like any other new matter, be pleaded.
II. The defendant relied upon a tax title, in support of which he offered a tax deed from the Sheriff and ex officio Tax Collector to W. M. Lent. Then a deed from Lent to John P. Shear, and a lease from John P. Shear to himself. This evidence was objected to by the plaintiff, upon several grounds, and excluded by the Court. Which ruling is next assigned as error.
It appears from the tax deed, which is a part of the record, that the land was listed as the land of persons unknown by the Assessor, and that the same was sold for the taxes for the fiscal year 1856 and 1857. The testimony on the part of the plaintiff proved that the defendant had been in the occupation of the land since 1856. Under these circumstances it is [45]*45claimed by the plaintiff that the defendant could not strengthen his title, either by purchasing at the tax sale himself, or by suffering a stranger to buy, and then purchasing from him.
If the defendant was under any legal or moral obligation to pay the taxes, he could not, by neglecting to pay the same and allowing the land to be sold in consequence of such neglect, add to or strengthen his title by purchasing at the sale himself, or by subsequently buying from a stranger who purchased at the sale. Otherwise, he would be allowed to gain an advantage from his own fraud or negligence in failing to pay the taxes. This the law does not permit, either directly or indirectly. On the contrary, if the defendant was under no legal or moral obligation to pay the taxes, there is no principle of law or equity which precludes him from purchasing at the sale, although in possession at the time the assessment was made or when the land was sold. Blackwell, in his work on Tax Titles, at page 470, uses this language: “One in possession of a tract of land at the date of the assessment, may purchase at the sale, unless it appears that he was bound to pay the taxes; in which case he can acquire no title by his purchase.” (Piatt v. Sinclair’s Heirs, 6 Ohio, 93 ; Chalteau v. Jones, 11 Ill. 322.)
In the present case the taxes were assessed under the Revenue Act of 1854. (Statutes of 1854, p. 88.) The sixty-fourth section of that Act is in the following language: “Lands occupied by any person not the owner thereof shall be listed in the name of the owner,' if known; otherwise, in the name of the occupant, who shall pay the taxes on the same; and for the taxes paid by such occupant he shall have his action against the owner.” The sixty-fifth section of the same Act provides that “unoccupied lands shall be listed in the name of the owner, if known; otherwise, as lands of persons unknown * * Thus, the Assessor is required to list the land in the name of the owner, when known, whether the land be vacant or occupied; but when the owner is unknown he must list the land, if occupied, in the name of the occupant; if unoccupied, he must list it as the land of a [46]*46person unknown. This rule must be strictly followed by the Assessor, in order to impart any validity to the assessment. If the land is unoccupied and the owner unknown, both these facts must appear in the list made by the Assessor in order to make an assessment to an unknown owner valid. If the land is occupied and the owner unknown, both of these facts must appear in the list in order to make an assessment to the occu-, pant vaiid; or, in other words, a vacancy ,as to possession, and an ignorance of the true owner, are conditions precedent to the validity of an assessment against an unknown owner; and, where the land is occupied, ignorance of the true owner is a condition precedent to the validity of an assessment against an occupant. If the land be listed to the owner, nothing more need be stated by the Assessor; but if it be listed in the name of an occupant who is not the owner, it must be stated by the Assessor to have been so listed because the owner was unknown to him; and if it be listed as the land of a person unknown, he must state the land is so listed because the owner is unknown -and the land is unoccupied. Unless this care is observed the assessment has not been made according to law, and constitutes no charge upon the land, and no legal obligation is imposed upon any one to pay the taxes. In order to impart any validity to the acts of the Assessor, the provisions of the statute must be strictly followed, and all its conditions fully complied with by that officer. “In powers of this nature a series of acts, preliminary in character, are required by law to precede the execution of the power. Each and every step, from the listing of the land for taxation to the consummation of the title by the delivery of a deed to the purchaser, is a separate and independent fact. All of .these facts, from the beginning to the end of the proceeding, must exist; and if any material link in the chain of title be wanting, the whole falls to the ground for the want of sufficient authority to support it.” (Blackwell on Tax Titles, p. 84.)
From what has been said, it follows that the defendant, notwithstanding he may have been in the occupation of the [47]*47land at the time the assessment was made, (the land not having been listed in his name,) was under no obligation to pay the taxes, and therefore was not precluded from purchasing the tax title. Independent of this, it does not appear that the defendant was in possession at the date of the assessment. The witness who was examined upon this point says “ that the defendant has been in possession since 1856.” This language embraces no part of the year 1856. The assessment, if made at the time required by law, must have been made between the first Mondays of March and August of the year 1856. In either aspect, therefore, the defendant was not precluded from buying at the tax sale.
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By the Court, Sanderson, C. J.
This is an action for the possession of land and for the recovery of mesne profits. The complaint is in the usual form, not verified. The answer contains a denial of all the material facts stated in the complaint, and an averment of title in the defendant. The plaintiff recovered judgment for the posses[44]*44sion of the land, and twenty-one hundred dollars rents and profits.
The defendant moved for a new trial, which was denied. The appeal is from the judgment and from the order denying ,a new trial.
• I. In support of his case the plaintiff produced a patent from the Government of the United States, and several mesne conveyances, showing a regular chain of title from the patentees to himself, and proved that the land in controversy was included within the calls of the patent and mesne conveyances, and also proved the value of the use and occupation.
The defendant, by way of set-off to the plaintiff’s claim for mesne profits, offered testimony as to the value of his improvements, which, upon the objection of the plaintiff, was excluded by the Court. This ruling of the Court is assigned as error.
No claim for improvements is made in the answer, and for that reason alone the testimony was properly excluded. A. defendant in ejectment, who desires to set off the value of his improvements against the mesne profits, must assert his right by proper averments in his answer, or he is precluded from doing so at the trial. In such cases, the value of the improvements constitutes a counter claim, or set-off, and in order to make it available as a defense, it must, like any other new matter, be pleaded.
II. The defendant relied upon a tax title, in support of which he offered a tax deed from the Sheriff and ex officio Tax Collector to W. M. Lent. Then a deed from Lent to John P. Shear, and a lease from John P. Shear to himself. This evidence was objected to by the plaintiff, upon several grounds, and excluded by the Court. Which ruling is next assigned as error.
It appears from the tax deed, which is a part of the record, that the land was listed as the land of persons unknown by the Assessor, and that the same was sold for the taxes for the fiscal year 1856 and 1857. The testimony on the part of the plaintiff proved that the defendant had been in the occupation of the land since 1856. Under these circumstances it is [45]*45claimed by the plaintiff that the defendant could not strengthen his title, either by purchasing at the tax sale himself, or by suffering a stranger to buy, and then purchasing from him.
If the defendant was under any legal or moral obligation to pay the taxes, he could not, by neglecting to pay the same and allowing the land to be sold in consequence of such neglect, add to or strengthen his title by purchasing at the sale himself, or by subsequently buying from a stranger who purchased at the sale. Otherwise, he would be allowed to gain an advantage from his own fraud or negligence in failing to pay the taxes. This the law does not permit, either directly or indirectly. On the contrary, if the defendant was under no legal or moral obligation to pay the taxes, there is no principle of law or equity which precludes him from purchasing at the sale, although in possession at the time the assessment was made or when the land was sold. Blackwell, in his work on Tax Titles, at page 470, uses this language: “One in possession of a tract of land at the date of the assessment, may purchase at the sale, unless it appears that he was bound to pay the taxes; in which case he can acquire no title by his purchase.” (Piatt v. Sinclair’s Heirs, 6 Ohio, 93 ; Chalteau v. Jones, 11 Ill. 322.)
In the present case the taxes were assessed under the Revenue Act of 1854. (Statutes of 1854, p. 88.) The sixty-fourth section of that Act is in the following language: “Lands occupied by any person not the owner thereof shall be listed in the name of the owner,' if known; otherwise, in the name of the occupant, who shall pay the taxes on the same; and for the taxes paid by such occupant he shall have his action against the owner.” The sixty-fifth section of the same Act provides that “unoccupied lands shall be listed in the name of the owner, if known; otherwise, as lands of persons unknown * * Thus, the Assessor is required to list the land in the name of the owner, when known, whether the land be vacant or occupied; but when the owner is unknown he must list the land, if occupied, in the name of the occupant; if unoccupied, he must list it as the land of a [46]*46person unknown. This rule must be strictly followed by the Assessor, in order to impart any validity to the assessment. If the land is unoccupied and the owner unknown, both these facts must appear in the list made by the Assessor in order to make an assessment to an unknown owner valid. If the land is occupied and the owner unknown, both of these facts must appear in the list in order to make an assessment to the occu-, pant vaiid; or, in other words, a vacancy ,as to possession, and an ignorance of the true owner, are conditions precedent to the validity of an assessment against an unknown owner; and, where the land is occupied, ignorance of the true owner is a condition precedent to the validity of an assessment against an occupant. If the land be listed to the owner, nothing more need be stated by the Assessor; but if it be listed in the name of an occupant who is not the owner, it must be stated by the Assessor to have been so listed because the owner was unknown to him; and if it be listed as the land of a person unknown, he must state the land is so listed because the owner is unknown -and the land is unoccupied. Unless this care is observed the assessment has not been made according to law, and constitutes no charge upon the land, and no legal obligation is imposed upon any one to pay the taxes. In order to impart any validity to the acts of the Assessor, the provisions of the statute must be strictly followed, and all its conditions fully complied with by that officer. “In powers of this nature a series of acts, preliminary in character, are required by law to precede the execution of the power. Each and every step, from the listing of the land for taxation to the consummation of the title by the delivery of a deed to the purchaser, is a separate and independent fact. All of .these facts, from the beginning to the end of the proceeding, must exist; and if any material link in the chain of title be wanting, the whole falls to the ground for the want of sufficient authority to support it.” (Blackwell on Tax Titles, p. 84.)
From what has been said, it follows that the defendant, notwithstanding he may have been in the occupation of the [47]*47land at the time the assessment was made, (the land not having been listed in his name,) was under no obligation to pay the taxes, and therefore was not precluded from purchasing the tax title. Independent of this, it does not appear that the defendant was in possession at the date of the assessment. The witness who was examined upon this point says “ that the defendant has been in possession since 1856.” This language embraces no part of the year 1856. The assessment, if made at the time required by law, must have been made between the first Mondays of March and August of the year 1856. In either aspect, therefore, the defendant was not precluded from buying at the tax sale.
The land was assessed for the taxes in question in Ban Mateo County, and was sold by the Tax Collector of that county, and the deed in question made by him. It was proved by the plaintiff that the land, at the time this action was brought, was in the County of San Francisco. The present boundaries between the two counties were established by Act of the Legislature on the 18th day of April, 1857, and the tax sale was made in June thereafter. These facts are the foundation of the second objection to the deed, which is to the effect that the sale was illegal, admitting that all the previous proceedings were regular. If the land was in San Mateo County at the date of the assessment, a subsequent change in the county boundaries, resulting in a change or transfer of the land to another county, could not defeat the lien of the assessment, nor divest the Tax Collector of San Mateo of the power to enforce the collection of the taxes by sale of the land. Upon this point, Mr. Blackwell, in his work on Tax Titles, at page three hundred and forty-five, remarks: “ When, after an assessment is made, the county in which the proceeding was had is divided, the Collector of the old county has power to sell land lying in the territory embraced in the newly created county,” and cites Devor v. McClintock, 9 H. and S. 80; and adds: “ This is in conformity with the general principles of law in analagous cases.’
The next and last objection to the deed is that it does not [48]*48contain the necessary recitals. This objection, in our judgment, is also untenable. It is not necessary, under the Act of 1854, to recite in the deed the various acts which show a compliance, on the part of the revenue officers, with the several conditions of the statute. These acts are only required to be recited in the certificate of purchase. Their omission from the deed only affects the question of proof. If inserted in the deed, the deed becomes prima facie evidence of the truth of the recitals, and the burden of showing that the law has not been complied with in the preliminary steps is cast upon the adversary party. But if omitted, the party offering the deed must prove, aliunde, all that is necessary to the validity of the sale. The statute does not prescribe the form of the deed, but simply authorizes the execution of a deed of conveyance in fee simple to the purchaser; and its sufficiency must be tested by the principles of the common law. “ Any deed which, according to the rules of the common law, would be sufficient to transfer the title of the former owner and vest the estate in the purchaser, is regarded as an operative mode of conveyance, provided it recites the power under which it was made, and is accompanied by proof that the law was strictly complied with.” (Blackwell on Tax Titles, page 435; Chandler v. Spear, 22 Vermont, 388; Brown v. Hutchinson, 11 Ib. 569; Spear v. Ditty, 8 Ib. 419 ; Bank of Utica v. Merseran, 3 Barb. 528.)
It is not pretended that the deed, tested by the rules of the common law, is insufficient. It is good as an ordinary conveyance, and contains a recital of the power under which it was made. This is all that was necessary to entitle it to be read in evidence. In order to render it of any avail, the defendant would have been compelled to follow it up with other evidence, showing that the law had been strictly complied with. We cannot presume that he was unable to do this, and declare that therefore the deed was properly excluded.
The judgment is reversed and a new trial ordered.
Mr. Justice Shafter expressed no opinion.