Opinion.
Campbell, C. J.:It is undoubtedly true that the appellant, by his purchase of the land at the sale for taxes, did not acquire any right as against the remainder in the land created by the will, but we fail to discover why he did not obtain the right of Joseph S. O. Lenoir to occupy and cultivate that part 'of the land which, by agreement between them, the latter was holding in severalty. The brothers had the right, under the will of their father, to occupy the land as a home and cultivate it as long as either chose to do so, which might be for life. They made partition, and each agreed to occupy a designated portion. This partition was valid as between them, and each held in severalty the portion assigned to him, and each was bound, as to the other, to pay the taxes accrued on the part held by him in severalty. Both were under obligation to protect the remainder, but neither sustained any relation to the other as to the occupancy in severalty, which imposed on him a duty to protect it from sale for taxes, or which precluded him from buying at a sale for non-payment of taxes on that part. The appellant, because of his duty to protect the remainder, acquired no title by his purchase as against the remainder-men, but he did acquire title so far as he was not disabled by his duty aforesaid from purchasing. The chancellor held that the appellant acquired nothing by his purchase, because he was disabled from purchasing at all, even as against his co-tenant, after partition. This is erroneous. Nor is it true that an interest in land, less than a fee, may not be acquired at a sale for taxes, or that the title acquired at *562such sale to au interest less than a fee may not be confirmed, in pursuance of section 1753 of the Code of 1871. It is true that a fee-simple title is embraced in that séction, but every smaller estate which may pass by a sale for taxes is also embraced and is equally the subject of confirmation as a fee is. It does not appear in this case, by express averment, that the part of the land sold for taxes was that assigned by the partition to J. S. C. Lenoir. This is supposed to be the case, but it does not distinctly appear from the record, so far as we can discover. The case was disposed of in the court below on other grounds, and without reference to-this. We differ from the chancellor on the points on which he made his decision to turn; and,- in order that the case may be litigated on what we consider the real ground of contest, we will reverse the decree and remand the cause. It was improper, under, the circumstances of this case, to make parties defendant any except Joseph C. Lenoir, and the cost of doing so should be taxed against the appellant, who was complainant in the court below. The pleadings should be amended and the contest carried on, if at all, between the appellant and Joseph -S. O. Lenoir, whose life-interest only can be affected by this decree.
Decree reversed and caurse remanded for proceedings in accordance with this opinion.