Terry, C. J. concurring.
Several questions of extraordinary interest and importance arise in this case, and they have been argued with much force and learning.
The facts are few and simple.
The Respondent filed his bill in equity to foreclose a mortgage executed to him by Abbott & Edwards, on a certain lot in the city of Nevada. To this bill the mortgagors alone were made defendants, but afterward the plaintiff amended his bill ' and made Clark a party j the bill charging that Clark claimed some interest in the property acquired after the execution of the mortgage. Abbott & Edwards made default. Clark answered and sot up a tax title and deed in himself, executed on the 14th of December, 1857, after the date of the mortgage, which is dated 1st January, 1857. The plaintiffs demurred to this answer, but no action was taken on the demurrer, the consideration of it being deferred until the trial on the merits. On the trial, Clark produced .his tax deed, and also a Sheriff’s deed to himself and his partner, Wilbur, dated September 6th, 1858, which last deed was founded on a judicial sale by the Sheriff of Nevada County, made on the 5th June, 1857. The plaintiff, in answer, produced the assessment of the property for the year 1857. He also proved that Clark & Co. (Wilbur & Clark) had been in the actual possession of the premises since May, 1857. They purchased the building 5th June, 1857, at Sheriff’s sale, as said before.
The assessment is as follows: “ House and lot north side of Commercial Street, formerly owned by Belle Creole; also brick store north side of Commercial Street, and second from the corner of Pine and Commercial, including lot and all the appurtenances, seven thousand dollars.” At the top of the page are the following words : “Nevada County, Nevada Township, Nevada City.” There is no date to the assessment. The view which we have taken of this case renders it unnecessary to go into an examination of many of the propositions which have been elaborately argued at the bar.
The Appellant insists that the Court of Chancery has no jurisdiction over the tax title. Probably a sufficient reply to this is
*617found in the fact that he himself sets it up as a defense. He does not object to having been made unnecessarily or improperly a party, nor does he set up this matter as so far denying the power of the Court to pass upon his interest or claim; but seems to urge it as a full and sufficient defense to the decree of foreclosure.
We proceed to consider the defense on the merits.
The case of Green v. Craft, (6 Cush. 28 Miss. 70,) is in point on the question of the validitj'- of the assessment. The Mississippi Statute, (Hutch. Code, 200, Sec. 5,) contains the same clause in substance as ours in respect to the effect of the tax deed. The same.point there was taken and pressed. But the Court said : “ The term ‘ taxes/ it is said, includes all contributions imposed by government upon individuals for the service of the State. The individual, and not his property, pays the tax. The property is resorted to for the purpose of ascertaining the amount of the tax with which the owner must be charged, and for the purpose of' enforcing payment when the owner shall be legally in default in paying at the time stipulated, by law. Ho person is a tax-payer until he has been so declared by the proper officer. The assessment must be as certain in designating the person chargeable with the tax at the commencement of the fiscal year, as it must be in designating the amount of the charge, and the property to which reference is made for the purpose of ascertaining such amount.
An assessment must be made, in order to create a liability on the part of the individual to pay the tax. If no such assessment be made, no liability is created, and, of course, there can be no default in discharging that which has no existence. To authorize the Collector to sell property to enforce the payment of taxes there must be both a legal liability on the part of the owner to pay the tax, and a legal default _in making payment.”
The Revenue Act of 1854, (Acts, 104,) provides, by the 64th Section, that lands occupied by any person not the owner thereof, shall be listed in the name of the owner, if known; if not, in the name of the occupant; and by Section 65, unoccupied lands shall be listed in the name of the owner, if known; otherwise, as lands of persons unknown; lots or real property within the limits of any incorporated city shall be listed separately, as the same may bo owned or held; or when this is unknown, in *618accordance with the survey or plan. By Section 67, in case of a mortgage of real estate, the mortgagor shall pay the taxes on the value of the property. By Section 74, mortgages are taxed. By Section 89, every assessment made in conformity with the spirit and intention of the provisions of this act, shall remain as a judgment and lien, and have the force and effect of an execution against the party and property liable for the taxes thereon. By Section 99, the lien of the State for all taxes for State and county purposes, shall attach on all real and personal property on the first day of March, annually, and such lien, to the absolute exclusion of other liens, shall continue till all taxes thereon shall be paid, etc.
In 1857, (29th April,) another Eevenue Act was passed. By Section 4 of this Act, it is made the duty of the Assessor to prepare a tax list or assessment roll, in which shall be listed or assessed all the real estate, etc. and which shall contain the names of all taxable inhabitants.
2. All real estate and improvements on public lands taxable to each, giving the metes and bounds, etc.
By Section 22, it is provided that, upon the delivery to the County Eecorder of the duplicate certificates required in a previous section, the lien of the State shall become, and is, vested in the purchaser at the tax sale, and when not redeemed by payment, etc. the title of every assessed delinquent to the land purchased shall vest, etc.
By Section 32, every tax levied under the provisions or authority of this act, is hereby made a judgment against the person, and a lien against the property assessed, which lien shall attach and judgment date as of the first Monday in March of each year, and shall have the full force and effect of an execution against all property of the delinquent, which judgment shall not be satisfied nor the lien removed until the taxes are all paid, or the property has absolutely vested in the purchaser under a sale for taxes.
This provision seems to be in substitution of Sections 89- and 99, of the Act of 1854.
These citations from the statute show that the assessment must be made against the owner, when known.
2. These proceedings on tax sales are strictissimi juris. They are cases of a naked statutory power, and all the steps directed *619by the statute must be strictly pursued. (Ferris v. Coover, 10 Cal. 632,) and the numerous cases there cited.
We do not understand that the statute making the certificate and deed, prima facie evidence of certain facts, does away with the obligation to follow the directions of the law. If within the power of the Legislature to do this, it has not attempted it. It has only shifted the burden of proof, leaving the effect of the facts when proven, as it was before.
The assessment was not in the name of the owner, nor is it shown that the owner was unknown. It seems to be conceded that the name of “ J. C. Abbott ” appeared in the paper, but the finding does not so state. It seems that this was the property of Abbott & Edwards, who mortgaged it; and the statute contemplates that the mortgagors are the proper persons to whom the property should be assessed—the mortgagees are assessed on the mortgage. But the assessment was fatally defective in omitting “to give the metes and bounds, or describing the premises by lots or fractions of lots.” (Wood’s Big. 615, Sec. 4.) It is obvious that it was designed that some definite account of the extent of the lot should be required; for it is provided by Section 17, that the property must be sold to the bidder who will take the smallest part of the property for the tax. It seems that this assessment roll has no date, and that it does not give the township, city, or incorporated town, as required. But it is not necessary to pass on these latter objections.
3. Even if these objections failed, it is very hard to see how the last point taken by the Appellant can be avoided. Clark & Co. went into possession of these premises; they were in possession at the time of this tax; they had bought at Sheriff’s sale, which gave them a right to the profits until redemption—these they were enjoying. Between them and defendants in execution, they should in equity have paid the taxes; and the statute easts this* duty of paying the taxes on the party in possession, if the owner does not. They can derive no benefit from a failure to pay them, and thus suffering the lot to be sold and buying it. In equity, the purchase would seem to be merely an advance, and this, whether made by one or both of the partners, for the duty was several as well as joint.
We think the judgment should be affirmed.