The first error, according to the decision of a *476majority of this court in the case of Bellas v. M’Carty, ante 13, is sustained, and therefore, on account of it, alone, the judgment of the district court must be reversed. This may render a decision of the question embraced in the second.error unnecessary for ever in this case. But should the sheriff’s sale of the lots to Air AI’Donald be established on another trial of this cause, when it may become necessary to pass on the second point, it may be observed that there does not seem to be much difficulty attending it. For it is clear, that if Stewart, the plaintiff, had paid the taxes, for the non-payment whereof the lots were sold to Alulgrew, that would not have secured and protected him in the enjoyment of them against Air M’Donald or M’Kee, the assignee of M’Donald’s executors, who became the purchaser of them at sheriff’s sale under the judgment in favor of Jones against Patterson, the defendant here. It is not easy to perceive how the omission of Stewart to pay the taxes injured or affected the rights of Patterson, seeing the latter, by his own default to pay the judgment of Jones, upon which the lots were sold and for the payment of which they were bound, suffered them to be taken in execution and sold from Stewart. To have required Stewart under such circumstances to have paid the taxes, would have been no better than compelling him to throw so much money away, beside losing the lots themselves, without the most distant prospect of being reimbursed. Besides it is impossible not to see that Patterson has been the gainer and Stewart the loser by reason of the default of Patterson in all that has been done. Patterson has in effect received pay twice for the lots; first, upon his sale of’them to Stewart; and secondly, by the appropriation of the money arising from the sheriff’s sale of them, afterwards, towards payment of the debt owing by him to Jones: whereas Stewart, on the other hand, after having paid Patterson for the lots, has lost them through the neglect of Patterson to pay the debt owing by him to Jones, and not by reason of the non-payment of the taxes, as has been alleged, because they were taken from Stewart by the sheriff’s sale something like two years before the sale was made of them for non-payment of the taxes. Had this latter sale been made first, there might have been some color for the argument of the defendant’s eounsel, but it could have availed Stewart nothing to'have paid the taxes after the lots had been taken and sold from him by the sheriff; by paying them either then or at any time before, he would have been a loser without any prospect of redress whatever: in short, it would have been the extreme of folly'in him to have done so.
Judgment reversed and a venire de novo awarded.