(concurring).
In the case of Totten v. Nighbert, 41 W. Va. 800, (24 S. E 627), this Court held that “the State is not bound by the unauthorized or illegal acts of its officers, nor can its title to a tract of land be transferred, devested, or affected in any manner or to any extent by such unauthorized or illegal acts, and all persons who deal with such officers do so at their peril in ali matters wherein such officers exceed *451their legitimate powers.” This law rules and controls this case. If the officers who acted for the State in the court below confined themselves to their legitimate powers and strictly pursued the law in relation thereto, the State is thereby estopped, and this appeal is not maintainable. If, on the other hand, such officers disregarded the provisions of the law, and thereby exceeded their legitimate powers, this appeal is maintainable. The land in controversy is the property of the State by forfeiture. As á matter of grace, it extends to the former owner the right to redeem the same on payment of costs, taxes, and interest. If he desires to redeem the land as forfeited, he can do so by payment of costs, taxes, and interest ascertained as against the whole thereof; but, if' he desires to redeem a less quantity than the whole, it is his duty to carefully describe and accurately locate the portion he seeks to redeem, so that the court may properly ascertain and fix in its decree the costs, State, county, and district taxes, and interest thereon, chargeable against the same, the prepayment of which is necessaiw to consummate such redemption. The State officers are not authorized to permit redemption in any other way, and their doing sois in excess and abuse of their powers, and the decree of the circuit court authorizing such • redemption is not only erroneous, but is a nullity. For instance, in this case a tract of’land containing three hundred and twenty-seven thousand acres, subject to certain unknown exceptions, is permitted to be redeemed on the mere theory or estimate that after such exceptions are deducted only ten thousand acres will remain scattered somewhere within the boundary of four separate counties, and on this basis a pretended estimate of the unpaid taxes is made. Such a redemption as this was not contemplated by the statute, nor would it ever have been authorized byr the legislature. It is not as well defined as the long-time abandoned inclusive grant, which did, at least, set forth the number of acres of the prior and included grants reserved. This alleged redemption furnishes nothing on which to base anything like an accurate statement of the unpaid taxes, but the whole is guesswork, pure and simple. The lands are here. They belong to the State. The former owner may redeem them if he will com= *452ply with his obligations to the State. But he must point them out, and show the district and-county in which they are situated. Then the taxes can be fairly ascertained and the title, so far as it remains in the State, may be transferred to him. He is not bound to redeem any portion thereof unless he wants to, but he must make known the' portion that he does want to redeem, so that the State may know and sell or properly assess that which is not redeemed. It is not sufficient to say he redeems the whole except such portions as are held by others by a better title; for the State knows nothing about the title of others. It is simply trying to collect its taxes off of the lands forfeited. .If the former owner still wants to claim them under his forfeited title, he may do so by the payment of the taxes justly due thereon, subject to the. rights that any person not a party to the redemption suit may have under the provisions of section 3, Article XIII., of the Constitution. Such persons are unknown, and, in so far as they are concerned, the State has the right to claim taxes for the whole boundary. If there are any7 of such holdings that the former owner does not want to include in and cover by his redemption he has the right to exclude them therefrom, and be relieved from payment of taxes thereon; but, if there are any of such holdings that are inchoate or doubtful, that the former- owner wants to cover by his redemption, he has the right to do so by prepayment of the taxes thereon. None of these things can be accomplished otherwise than by the former owner locating the boundary he wishes to redeem, thus excluding therefrom such portion as he abandons. This knowledge is in the possession of the former owner. If he does not have it, no one does. If he wants to eject a subsequent claimant to any portion of this land, he should pay the taxes on such portion. It is certainly, asking too much of the State to demand by the-payment of the taxes on ten thousand acres an india-rub-ber title to stretch over three hundred and twenty-seven thousand acres at his pleasure. And, if such a decree-were permitted to stand in a suit in ejectment thereunder, the trial court not only should require the former owner to show that the defendant’s land was included in the three-hundred and twenty-seven thousand acres, but that it was. *453also included in the ten thousand on which the taxes were paid, and that he did not have such ten thousand acres exclusive of defendant’s land. This would be the only just method of reducing such former owner to the true extent of his redemption. Stockton v. Morris, 39 W. Va. 432, (19 S. E. 531). For, if he already had the ten thousand acres on which he paid the redemption taxes, exclusive of the defendant’s land, such land could not be regarded as redeemed, but the title, if not in the defendant, would still be in the State, unredeemed, and the ejectment suit would thereby be defeated. The decree, however, permits the redemption of the whole three hundred and twentv-seven thousand acres of land. It therefore does not follow, nor is it based on, the commissioner’s report, except as to the amount of the taxes. The report ascertains “that about ten thousand acres of said land is unclaimed by junior claimants, and situated in West Virginia, — in McDowell Countv eight hundred acres, Mingo County one thousand seven hundred acres, in Logan County five thousand seven hundred, and in Wyoming County one thousand eig'ht hundred acres; and the taxes and interest thereon will be found in a table hereinafter set forth.” This is all the land on which the taxes and interest were ascertained, and this is all that, in any event, should have been adjudged redeemed, for it is- all on which the taxes have been paid. This excludes all the land that is claimed by junior claimants, whether their claims are just or unjust; and the decree of redemption should have done the same thing, thus giving to the former owner ten thousand acres not claimed by junior claimants, and giving him no land but that on which he had paid the taxes as ascertained and fixed. While such a redemption would have been a departure from the accuracy required by law, it would not have been plainly unjust to the State. The decree, in disregard of . the commissioner’s report, is made not only to cover the ten thousand acres, but all the land claimed by junior claimants, except such as are protected by the Constitution. Thus, all the unprotected claimants are placed at the mercy of the former owner, although he paid no taxes in redemption of their lands from forfeiture. While it is law that he may redeem these land's, and eject the claim*454ants, yet the law does not permit him to do so; nor is it just to the State that he should until he satisfies the unpaid taxes due thereon. The inchoate title of these claimants until the payment of the arrearage taxes is superior to the forfeited title, and may become absolute. To permit such an illegal redemption to stand as valid would be to deprive these junior claimants of their possessory rights without due process of law. They have no right to object to the redemption of the land, but they have the right to object to its redemption in an illegal manner; and, the decree being in excess of the jurisdiction of the circuit court as limited by the statute, and void as to the State, would be likewise void as to the junior claimant, and invalid to sustain the forfeited title. If this Court should permit this decree to stand, and hold the .State had not the right of appeal, this would not be binding on the junior claimants; and, when this decree was presented against them, thev would have the right to show by the record, including the commissioner’s report, that the lands claimed by them were excluded from the redemption, that the taxes had not been paid thereon, and that the decree, in so far as it affected them, was in excess of the jurisdiction of the court. Without prepayment of taxes thereon, the court is without authority to relieve the land from forfeiture. This is made a condition precedent to redemption. If the decree fails to require such prepayment directly or indirectly, it is void. The circuit court cannot give away the State lands nor the State’s taxes. Such donations are void. The legislature only'has limited power to do so. Freem. Judgm. § 120c; Yates v. Taylor County Court, (decided at this term) 35 S. E. 24. Such decree is, therefore, valueless, In any event, to the original owner, except as to that portion of the land on which he has prepaid the taxes, namely, land not in the possesssion of junior claimants excluded by the estimate of the commissioner’s report in ascertaining the unpaid taxes, and, for the good of all parties in interest, should be reversed and annulled.
Reversed.