DISSENTING OPINION OP
PERRY, J.While concurring in the view that as between Desky and Booth the land was, under the circumstances stated, assessable to Booth, I respectfully dissent from the conclusion reached by the majority to the effect that the defendant may not successfully defend in this action by showing that the assessment of $100,000 was upon a whole tract only a portion of which belonged to the defendant at the date of the assessment.
: The contention that the assessment in question was upon that portion only of Pacific Heights the title to which remained in Booth on January 1, 1900, is entirely unsupported by any evidence. The undisputed testimony clearly shows, on the contrary, that the assessment was made on the whole of the tract of land known as Pacific Heights including the portions conveyed by Booth prior to January 1, 1900, as well as the remainder not so conveyed. In my opinion such an assessment is illegal and invalid. Our statute not only requires that the interest of every person in any property shall be separately assessed (Section 821, Civil Laws) but also that all real and personal property shall be assessed separately as to each item thereof. Seei Section 820. The return required to be filled by each person is only of the property belonging -to such person. Section 870, Subdivision 1. An examination of the statute as a whole shows that it w'as the *123intention of the Legislature to- have assessed against each person only the property belonging to him and not that of others.
Indeed it would seem that this would be true as a general principle, in the absence of a statutory provision to that effect, where the object is a fair distribution of the burdens of taxation. Nor can this, I think, be held to be a case of a “mere informality” within the meaning of Section 890, which provides' that “no assessment or act relating to the assessment or collection of taxes shall be illegal or invalidate such assessment or collection, on account of mere informality, nor because the same was not completed within the time required by law.” It is a matter of substance and not of mere form.
“It is also generally made a requirement that separate and distinct parcels of land shall be assessed separately. This is certainly essential where the lands are resident or Seated and owned by different persons each of whom has a right to know exactly what demand the government makes upon him. And a failure to do this is not a mere omission, defect or irregularity which can be overlooked, under a statute which provides that assessments for taxation shall be valid, notwithstanding any omission, defect or irregularity in the proceedings. * *. * The reasons are sufficiently manifest. If separate parcels of land belonging to different individuals and presumably of different values, can be assessed together, neither of the owners has any means of determining the amount of taxes which is properly chargeable to his property, and consequently no means of discharging his own land from the lien, and of protecting his title, except by paying the whole of the demand, some undefined and undefinable portion of which is neither in equity nor in law a proper charge against him. Nay, when the two parcels are owned by the same person if the statute requires a separate assessment, obedience to the requirement is essential to the validity of the proceedings.” Cooley, Taxation, pp. 219-280. See also Tracy v. Reed, 38 Federal 69.
“An assessment of a whole tract to one who owns only a part of it is void.” — Blackwell, Tax Titles, § 218. “An illegal assessment of real property imposes no obligation on the owner to pay the tax levied thereon and creates no lien on the real estate so assessed.” — II)., § 194. See also Barker v. Blake, 36 Me. 433, 436; St. v. Williston, 20 Wis. 240; Whitney v. *124Thomas, 23 N. Y. 285; Hamilton v. Fond du Lac, 25 Wis. 490-495; Shimmin v. Inman, 26 Me. 228, 233; and Lane v. Janesville, 20 Wis. 321.
It is contended on behalf of the assessor that the defendant cannot now avail himself of the defense sought to be presented, because, assuming that the assessment included property not of the defendant, the case becomesi one of overvaluation merely, and that the defendant having forfeited his right of appeal to the Tax Appeal Court by his failure to make a return the assessor’s valuation is conclusive upon him. Section 872, O. L. It worild be deceiving one’s self to call this a case of overvaluation. It is no more such than it would be if the assessor had in express woi'ds made an assessment of $75,000 on the unsold portions of the land and $25,000 on the remainder, assessing the whole to the defendant. In each instance the intent would clearly be to place the valuation of $100,000 on the whole property and not on the unsold portion only; and after all it is the intent of the assessor in making the assessment, as expressed, which is to be ascertained.
While it is, in. my opinion, open to the defendant to establish the fact that the assessment included land not his own, it would not be competent for the court- to apportion the assessed valuation between'the property of the defendant and that which was not his, for that would be the equivalent of placing a valuation on each of the classes of land, something which the court would not be authorized to do except on an. appeal from the tax appeal court. It does not follow that the government is without a remedy, for under Sections 853 and 890, the assessor may now proceed to make a valid assessment of the land owned by the defendant on the date in question.
Section 875 of the Civil Laws, as I construe it, does not permit an appeal by a taxpayer to the tax appeal court with reference to property as to which he has made no return. The words, “or in the amount and character thereof,” relate merely to property as to which a return has been made; they may refer, for example, to questions of area or as to whether a vehicle shall be *125classed as one for the carriage of passengers or as onei for the carriage of freight. McBryde v. Kala, 6 Haw. 529, is certainly to the contrary. Of that case, however, .it may he remarked that the decision was hy a single judge only and that the statements there made on the subject now before us were obiter dicta,. The assessor may under § 853, “at anj^ time add to his assessment or tax list any person or property theretofore omitted.” If under that provision he assesses to one unretumed land belonging to him, that person has noi right of appeal as to the valuation placed thereon by the assessor; if, on the other hand, the assessment so made is to one not thei owner, then, in my opinion, such assessment is invalid.
The provision of § 872 that “if any person shall refuse or neglect to make said return, * * the assessor may make such assessment according to the best information within his reach and the same shall be binding and conclusive upon all persons, and shall not be subject to appeal,” does not, as I understand it, mean that the assessor may assess against A. the property of B. merely because he, the assessor, believes it to belong to A. “according to the best information within his reach,” and that, in case of such assessment, A has no remedy at all because of his failure to make a return. The assessment whieh the assessor is by this section authorized to make “according to the best information within his reach,” is that contemplated by the other sections of the statute, to-wit, of the property of A. against A. and it is with reference to tha,t property that .he is to use the best information within his reach. Nor was anything to the contrary decided in the Mehrten case, 13 Haw. 677. There the court simply held that where one has returned a parcel of land as his own, without any mention of any lease thereon, he is estopped from afterwards denying, on an appeal from the assessment on such land, that the land is wholly his own and from setting up that the land is subject to a lease and that he is the owner of the reversionary interest only.
In my opinion the exceptions should be sustained, the judgment for the plaintiff set aside and a new trial ordered.