This is a real action. It is not denied that the demandant is entitled to the demanded premises, unless a tax-title, under which the defendants claim the land, takes the demand-ant’s title from him.
It is contended by the defendants that the action cannot be maintained, because the demandant has not deposited with the clerk the amount of the taxes and charges for the non-payment •of which the tax sale was made. In Crowell v. Utley, ante p. 49, it is held, following other recent decisions, that, where a demand-ant claims under a tax sale, the defendant cannot be required to *55make such deposit, until the demandant shall establish his right by at least aprima facie case, the court adhering to the doctrine of the case of Orono v. Veazie, 57 Maine, 517. And the same rule must apply where the parties to the litigation are reversed. If the demandant has the true title, subject to its loss by a kale of the land for non-payment of taxes, then the defendant, who sets up a claim of title by virtue of a tax sale, must first make out aprima facie tax-title in defense of his claim, before the de-mandant can be required to make such deposit.
Here the defendants fail to make out a prima facie case. The proceedings of sale are void. A tax was assessed by county commissioners upon certain lots in an unincorporated township, assessing some of them at one rate and others at another rate, and portions of each set of lots were sold in solido by the county treasurer at a given sum paid for the whole by the purchaser, the treasurer certifying that the lands were " struck off (at that sum) to the said Gilman, the highest bidder therefor.” It does not appear, as it should, that any effort was made to obtain the amount of the tax and charges by a sale of some fractional part of the land less than the whole. The statutes, under which the sale was made, ( E,. S., 1857, c. 6, § 42, amended by c. 116, acts of 1862,) required that "so much of it (the land) should be sold ” as would raise the sum that would cover taxes and charges and interest. " So much ” means such fractional portion. Allen v. Morse, 72 Maine, 502. The error is fatal, and renders the deed void. Lovejoy v. Lunt, 48 Maine, 377; French v. Patterson, 61 Maine, 203; Whitmore v. Learned, 70 Maine, 276; Wiggin v. Temple, 73 Maine, 380.
Judgment for demandant.
AppletoN, C. J., WaltoN, DaNporth, Virgin and SyMONds, JJ., concurred.