dissenting.
I have not arrived at the conclusion attained by my brother judges in this case.
The facts material to be noticed are, that the lands of Mc-Fadgen were assessed in Prairie countjq as non-resident lands. That subsequently the owner became a resident, and within the knowledge of the collector, as early as the month of February, and so continued during the year, and up to the time of sale. That no demand was made, nor effort of any sort to collect the taxes charged, but that the lands were proceeded against and sold.
That Hunt bid off the first tract for the taxes due thereon, but having competition only secured a few acres in each of the remaining tracts; and refused to pay his bids for any. That in the afternoon, on the same day, the collector offered the lands again, when Hunt succeeded in bidding off all the tracts, without any diminution in the number of acres.
The opinion of a majority of the Court is, first, that the lands being assessed upon the non-resident list, the proceeding is and must continue as one in rem, and cannot be changed by the subsequent residence of the owner, to one in personam.
This principle, I am aware, is distinctly held by this Court,in the case of Gossett et al. vs. Kent et al., and is possibly the better exposition of the Statute, but of this I confess myself to entertain very serious doubts. But conceding that point fully, I think the conduct of Hunt clearly portrays a fraudulent intent, and for this reason, is entitled to no consideration from a court of equity, neither as to the first tract, nor the others.
It is said that “ intent and injury ” must concur to constitute fraud. And, in the opinion of the Court, Hunt having obtained the whole of the first tract bid off at the sale held in the morning, and having done no more in the afternoon, McFadgen suffered no injury, and therefore the purchase as to that tract is valid.
Hunt’s intention from the beginning was to drive off competition by underbidding — refusing to pay- — -and, at a second sale in the afternoon, to drive a better bargain; which he did, if a court of chancery will aid him in perfecting his title. The intent is apparent — the injury is, in buying McFadgen’s lands, under that intent, and seeking to hold them.
J think him entitled to none of the lands, and that the Court below was right in refusing him confirmation.