Tbe plaintiff claimed tbe right to tbe property upon tbe strength of bis title, derived through tbe tax deed to Eastman. Tbe case shows that this deed was given upon a tax sale made in 1840. The defendant, to defeat a recovery, relied, among other things, upon tbe tax deed executed to him May 18th, 1863, and founded on a tax sale made in 1854. Now, tbe doctrine is well settled that a junior levy and assessment of taxes, and a sale upon such assessment, effectually cuts off and destroys any earlier tax deed. It is evident then that tbe tax sale of 1854 destroyed tbe title derived through tbe earlier sale of 1840. But it is insisted that tbe tax deed given tbe defendant on tbe sale of 1854 is void, because tbe defendant was then tbe owner of tbe land, and bound to pay tbe taxes assessed upon it. But tbe evidence contained in the bill of exceptions utterly fails to show that tbe defendant owned tbe land in 1853 or 1854, and was under obligation to pay tbe taxes. Tbe evidence shows this state of facts: A tax deed of tbe lands to one Luther Haggedon, dated tbe 23d of May, 1849, founded upon tbe tax sale of 1846 ; a deed fromHaggerdonto Albert Cotterel dated March 15, 18'50; and a warrantee deed from Cotterel to tbe defendant, dated April 2d, 1853, and recorded May, 1853. It therefore appears that all tbe interest which tbe defendant bad in tbe land in 1853, was derived through tbe tax deed given to Luther Haggedon. Now tbe defendant, claiming through a tax deed granted on a subsequent tax sale, was under no higher duty to pay tbe taxes than tbe party claiming under tbe tax sale of 1840. Tbe defendant might abandon all right under tbe Haggedon tax deed, and acquire a new tax *78deed. At least we know of no principle of law wbicb wonld prohibit Mm from doing tMs. And it seems be did take a tax deed on tbe sale of 1854.
Furthermore, it is insisted by the plaintiff that the tax deed executed to Haggedon was absolutely void because neither the state nor the county were named as grantors therein. If tMs position is sound, and we do not deem it very material to determine whether it is or not, then it is very evident that the defendant acquired no title whatever under that deed. In this view there is no possible reason for saying that he was the owner of the property when the tax for 1853 was assessed, and therefore bound to pay the taxes for that year. But, even if the tax deed to Haggedon was not void for the objections taken to it by the plaintiff, still the defendant might abandon all rights under that deed and acquire a new tax deed. And this it seems he did do when he took the tax deed founded upon the sale of 1854. We therefore see no valid reason for holding that the defendant cannot hold the land under the tax deed issued on the junior sale. For there is no evidence in the case to show that he had any other interest in the land when the tax for 1853 was assessed, than what he acquired through the tax deed executed to Haggedon, and this interest he might abandon. If it appeared that he was in possession in 1853, it might with some reason be claimed that he went into possession under the Hag-gedon deed, and was bound to pay the taxes assessed for 1853 against the property. But this fact is not established by the evidence. Indeed it does not appear when the defendant took possession, though we may assume that he was in possession in 1864, since the lands were assessed to Mm that year. On this record we see no reason for disturbing the judgment.
By the Court — The judgment of the circuit court is affirmed.