Varser, J.
The plaintiffs are the owners of the lands in controversy under a chain of title connecting with State Grant No. 3276, unless the defendant has acquired title to the locus in quo under the tax sale to Siler. It is a fair interpretation of the record that the introduction by the plaintiff of the tax deed from Dean, tax collector, to Siler, and the affidavit appearing of record and the deed without warranty from Siler to the defendant were treated as a method of showing that the defendant claimed the title under a common source. the defendant introduced this tax deed, the Siler affidavit and the Siler deed, to him for the purpose of showing bis title.
Tbe evidence in tbe record discloses no actual possession on tbe part of tbe defendant and bis predecessor in title at any time for as long a period as three years, but only tbe placing of a fence on a small portion thereof within three years before tbe institution of this action, and that no person was in actual possession of tbe premises when the action was instituted.
It is elementary learning that tbe constructive possession follows tbe better title under such circumstances. This brings us to a consideration of tbe validity of tbe defendant’s tax title which be claims under tbe purchaser at the tax sale — F. L. Siler.
Tbe Legislature has tbe power to prescribe tbe details for statutory foreclosure of tbe taxpayer’s equity of redemption in other ways than by judicial process, and may regulate and declare directory, and not [763] vital, tbe administrative duties therein, which are to be performed by-public officers. It has the power to change or abolish these duties, in so far as they are not basic or jurisdictional. The requirement of notice to the defaulting taxpayer, who is the landowner, may be prescribed and regulated within reasonable limits by the Legislature, but cannot be dispensed with. Such a requirement is subject to the test of “due process of law.” The duty of the purchaser who elects to pursue the statutory method of foreclosure, as distinguished from foreclosure by judicial process in the courts, as required at the time of the instant tax sale, is absolute to follow, in strict compliance all mandatory and essential requisites to the validity of his title. This notice to the delinquent land-owner is one of these mandatory and essential requisites. 37 Cyc., 1423, 1425. Rexford v. Phillips, 159 N. C., 213. The purchaser is then proceeding in derogation of the common law and in derogation of the common right of the citizen to own his land. Doe v. Chunn, 1 Blackf. (Ind.), 336; Sibley v. Smith, 2 Mich., 486; Warren v. Williford, 148 N. C., 474; Mfg. Co. v. Rosey, 144 N. C., 370; Black on Interpretation of Laws (2 ed.), 570. Unless these provisions as to notice, which are required to be performed by the tax-sale purchaser, are liberally construed in favor of the land-owner, and strictly construed against divesting him of his estate, injustice may often result, and, in some eases, this may amount to oppression.
Ministerial officers who conduct proceedings in tax sales, and especially purchasers thereat, are required to comply with these provisions which bring notice to the citizen that his land is about to be lost; and if the title to the citizen’s land is divested from him, it must be upon a strict and clear compliance with the express limitations and provisions fixed by the law itself. Lumber Co. v. Price, 144 N. C., 50; Hays v. Hunt, 85 N. C., 303; McNair v. Boyd, 163 N. C., 478.
The trial court made the whole case turn upon the question of the payment of taxes for the year 1908 by the plaintiff, or some one for him. This view was evidently based on C. S., 8034, which provides, among other things, as follows: “No person shall be permitted to question the title acquired by a sheriff’s deed made pursuant to this chapter without first showing that he, or the person under whom he claims title, had title to.the property at the time of the sale, and that all taxes due upon the property have been paid by such person or the person under whom he claims title.” This statute, Revisal, 2909, was considered by this Court in Rexford v. Phillips, supra. In that case, the Court, speaking through Walker, J., in a well-considered opinion, says: “The defendant, having obtained his deed in violation of the express terms of the statute, acquired no title.” This is but a construction of the language of the statute which invokes its prohibitive terms [764] only when tbe title has been acquired “by a sheriff’s deed made pursuant to this chapter.” If the deed has not been made pursuant to— that is, according to, or in conformity with — the statutory provisions, then this provision in the statute does not apply. Both the provision as to the authoritative listing of property for taxes and the notice to the purchaser required under C. S., 8028, and his affidavit required by C. S., 8029, are material, basic acts. Both of these are necessary and prerequisite to bring the purchaser within the protection of this provision. Rexford v. Phillips, supra; King v. Cooper, 128 N. C., 347; Matthews v. Fry, 141 N. C., 582; Warren v. Williford, supra; Jones v. Schull, 153 N. C., 521.
Omitting from the instant case the question as to whether there has been any authoritative listing of the property in controversy for taxation, in either of the two ways pointed out in Rexford v. Phillips, supra, and, assuming that the tax deed is presumptive evidence thereof, and observing the clear decision in this latter case, reaffirmed in Stone v. Phillips, 176 N. C., 457, we hold that no presumption arises from the sheriff’s deed that proper notice was given to the landowner by the purchaser, as required by the statute, C. S., 8028. The affidavit required by C. S., 8029, is a necessary prerequisite to the validity of the tax deed. Sanders v. Covington, 176 N. C., 454; Rexford v. Phillips, supra.
The affidavit in the instant record states that the lands were taxed in the name of E. Ector for the year 1908, and that the notice published in the “Franklin Press” stated “in whose name they were taxed.” It is, therefore, apparent that the affidavit is prima facie and the only evidence of the published notice. The tax book showed the name “Price” after the name “Ector” in parenthesis. The affidavit, therefore, does not comply with the express mandatory provision in C. S., 8028, that the notice shall state “in whose name it was taxed.” Of course, the listing in the wrong name (C. S., 8019) does not make the sale void. Peebles v. Taylor, 118 N. C., 165; Stone v. Phillips, supra; Headman v. Comrs., 177 N. C., 261. This, however, does not make less mandatory the requirement (C. S., 8028) that the notice shall state “in whose name it was taxed.”
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Varser, J.
The plaintiffs are the owners of the lands in controversy under a chain of title connecting with State Grant No. 3276, unless the defendant has acquired title to the locus in quo under the tax sale to Siler. It is a fair interpretation of the record that the introduction by the plaintiff of the tax deed from Dean, tax collector, to Siler, and the affidavit appearing of record and the deed without warranty from Siler to the defendant were treated as a method of showing that the defendant claimed the title under a common source. the defendant introduced this tax deed, the Siler affidavit and the Siler deed, to him for the purpose of showing bis title.
Tbe evidence in tbe record discloses no actual possession on tbe part of tbe defendant and bis predecessor in title at any time for as long a period as three years, but only tbe placing of a fence on a small portion thereof within three years before tbe institution of this action, and that no person was in actual possession of tbe premises when the action was instituted.
It is elementary learning that tbe constructive possession follows tbe better title under such circumstances. This brings us to a consideration of tbe validity of tbe defendant’s tax title which be claims under tbe purchaser at the tax sale — F. L. Siler.
Tbe Legislature has tbe power to prescribe tbe details for statutory foreclosure of tbe taxpayer’s equity of redemption in other ways than by judicial process, and may regulate and declare directory, and not [763] vital, tbe administrative duties therein, which are to be performed by-public officers. It has the power to change or abolish these duties, in so far as they are not basic or jurisdictional. The requirement of notice to the defaulting taxpayer, who is the landowner, may be prescribed and regulated within reasonable limits by the Legislature, but cannot be dispensed with. Such a requirement is subject to the test of “due process of law.” The duty of the purchaser who elects to pursue the statutory method of foreclosure, as distinguished from foreclosure by judicial process in the courts, as required at the time of the instant tax sale, is absolute to follow, in strict compliance all mandatory and essential requisites to the validity of his title. This notice to the delinquent land-owner is one of these mandatory and essential requisites. 37 Cyc., 1423, 1425. Rexford v. Phillips, 159 N. C., 213. The purchaser is then proceeding in derogation of the common law and in derogation of the common right of the citizen to own his land. Doe v. Chunn, 1 Blackf. (Ind.), 336; Sibley v. Smith, 2 Mich., 486; Warren v. Williford, 148 N. C., 474; Mfg. Co. v. Rosey, 144 N. C., 370; Black on Interpretation of Laws (2 ed.), 570. Unless these provisions as to notice, which are required to be performed by the tax-sale purchaser, are liberally construed in favor of the land-owner, and strictly construed against divesting him of his estate, injustice may often result, and, in some eases, this may amount to oppression.
Ministerial officers who conduct proceedings in tax sales, and especially purchasers thereat, are required to comply with these provisions which bring notice to the citizen that his land is about to be lost; and if the title to the citizen’s land is divested from him, it must be upon a strict and clear compliance with the express limitations and provisions fixed by the law itself. Lumber Co. v. Price, 144 N. C., 50; Hays v. Hunt, 85 N. C., 303; McNair v. Boyd, 163 N. C., 478.
The trial court made the whole case turn upon the question of the payment of taxes for the year 1908 by the plaintiff, or some one for him. This view was evidently based on C. S., 8034, which provides, among other things, as follows: “No person shall be permitted to question the title acquired by a sheriff’s deed made pursuant to this chapter without first showing that he, or the person under whom he claims title, had title to.the property at the time of the sale, and that all taxes due upon the property have been paid by such person or the person under whom he claims title.” This statute, Revisal, 2909, was considered by this Court in Rexford v. Phillips, supra. In that case, the Court, speaking through Walker, J., in a well-considered opinion, says: “The defendant, having obtained his deed in violation of the express terms of the statute, acquired no title.” This is but a construction of the language of the statute which invokes its prohibitive terms [764] only when tbe title has been acquired “by a sheriff’s deed made pursuant to this chapter.” If the deed has not been made pursuant to— that is, according to, or in conformity with — the statutory provisions, then this provision in the statute does not apply. Both the provision as to the authoritative listing of property for taxes and the notice to the purchaser required under C. S., 8028, and his affidavit required by C. S., 8029, are material, basic acts. Both of these are necessary and prerequisite to bring the purchaser within the protection of this provision. Rexford v. Phillips, supra; King v. Cooper, 128 N. C., 347; Matthews v. Fry, 141 N. C., 582; Warren v. Williford, supra; Jones v. Schull, 153 N. C., 521.
Omitting from the instant case the question as to whether there has been any authoritative listing of the property in controversy for taxation, in either of the two ways pointed out in Rexford v. Phillips, supra, and, assuming that the tax deed is presumptive evidence thereof, and observing the clear decision in this latter case, reaffirmed in Stone v. Phillips, 176 N. C., 457, we hold that no presumption arises from the sheriff’s deed that proper notice was given to the landowner by the purchaser, as required by the statute, C. S., 8028. The affidavit required by C. S., 8029, is a necessary prerequisite to the validity of the tax deed. Sanders v. Covington, 176 N. C., 454; Rexford v. Phillips, supra.
The affidavit in the instant record states that the lands were taxed in the name of E. Ector for the year 1908, and that the notice published in the “Franklin Press” stated “in whose name they were taxed.” It is, therefore, apparent that the affidavit is prima facie and the only evidence of the published notice. The tax book showed the name “Price” after the name “Ector” in parenthesis. The affidavit, therefore, does not comply with the express mandatory provision in C. S., 8028, that the notice shall state “in whose name it was taxed.” Of course, the listing in the wrong name (C. S., 8019) does not make the sale void. Peebles v. Taylor, 118 N. C., 165; Stone v. Phillips, supra; Headman v. Comrs., 177 N. C., 261. This, however, does not make less mandatory the requirement (C. S., 8028) that the notice shall state “in whose name it was taxed.”
It is necessary. for the purchaser to follow the legislative requirements strictly in order to obtain a valid deed by this statutory method. The evidence in the instant case shows that no other lands in that community were known as the “Ector-Price lands.” Non constat that other lands were not known as Ector lands. The absent land-owner was entitled to have all the information that the statute required and in the exact form required by the statute. This is the purchaser’s plain duty in order to divest the taxpayer of the title to his land by a method [765] which, is in derogation of common right and the common law. C. S., 970, declaring the common law to be in force, first enacted in North Carolina in/ 1715, reenacted in 1778, and successively with each complete reenactment of our statute law, and finally in 1919, must be construed as a part of the same act as C. S., 8028.
We are further of the opinion that C. S., 8029, which requires that the affidavit of the purchaser shall state “particularly the facts relied on as such compliance” with C. S., 8028, is not met by’the instant affidavit in regard to stating “when the time of redemption would expire.” When a copy of the published notice does not appear as a part of the affidavit, we are constrained to hold that the mandatory character of this statute requires the affidavit to state the time of the expiration of the period for redemption by giving the date at which it expires.
On account of the foregoing defects in the affidavit of the purchaser, we hold that the plaintiff is not precluded from prosecuting this action to remove a cloud on his title by his failure to pay the taxes or to tender them in his complaint. Rexford v. Phillips, supra.
The court below held that if the plaintiff, or some one for him, had not paid the taxes for the year 1908, the plaintiff was barred by the three years statute of limitations. This three years statute has been held not to apply when the suit is to remove a cloud, as distinguished from a suit to recover the land sold for taxes from the tax-sale purchaser, or his assigns, who are in possession of the lands so sold. McNair v. Boyd, supra; Cauley v. Sutton, 150 N. C., 330; Beck v. Meroney, 135 N. C., 532.
In the instant case the defendant is not in the actual possession, if the evidence appearing in the record is found to be true, and has never been in the actual possession of the lands in controversy, except such as may have resulted from the putting of the fence on the small portion adjoining his other lands, within three years just before this action was instituted. Therefore, it is apparent that the constructive possession of this “wild mountain land” has been in the plaintiff’s constructive possession under their paper title. Upon these facts, if found by the jury to be true, the three years statute of limitations could not avail the defendant. Jordan v. Simmons, 169 N. C., 142; Oldham v. Rieger, 145 N. C., 254; Guthrie v. Bacon, 107 N. C., 337.
The tax deed, under which the defendant claims, not being sufficient to draw unto the defendant the constructive possession, left the plaintiffs in the constructive ppssession of the land and avoided the bar of the statutes of limitations pleaded by the defendants.
Of course, the owner must pay, or offer to pay, the taxes and all other incidental cost with interest as prescribed by statute, if the jury shall finally decide that he has not paid the taxes properly assessed [766] against bim. Tbe record in tbe instant case is silent as to tbe authority of tbe listing of tbe land in controversy, other than tbe inferences to be drawn from tbe affidavit and tbe tax deed, and, since tbe affidavit of tbe purchaser falls short of tbe statutory requirements as to notice, this question is now open.
C. S., 8035, 8036, 8037, provide another remedy for tbe purchaser at a tax sale, whereby be may have foreclosure by judicial process, in addition to bis rights under C. S., 8028, 8029, 8030, to demand from tbe sheriff tbe tax deed. Wilcox v. Leach, 123 N. C., 74; Townsend v. Drainage Comrs., 174 N. C., 556; Headman v. Comrs., 177 N. C., 261.
Tbe exceptions to tbe rejection of evidence may not occur again and are, therefore, not discussed.
There must be a
New trial.