For the following reasons, I dissent from the majority opinion: The opinion, while professing to respect, actually overrules, Gillian v. McDowall, 66 Neb. 814, and the long line of decisions determined upon the authority of that case.
In Gillian v. McDowall, supra, a mortgagee was described in his mortgage, which was recorded, as J. P. Johnson. Subsequently a Mr. Cunningham foreclosed a tax lien upon the mortgaged premises, impleading Johnson as a defendant, and describing him in the pleadings, process and proceedings as “J. P. Johnson.” There was substituted service of summons; Johnson did not appear, his default was entered, and a judgment rendered adverse to his mortgage estate. In the reported case it was held that this 'judgment was void as to Johnson and his interest in the land, because he had not been sued by his true name. This case cannot be distinguished in a substantial particular from the one at bar. The comprehensive declaration of the law that the judgment was. void includes a negative of every argument that might be advanced to sustain its validity.
The legislature recognized the common law upon the subject as amended by acts of parliament subsequent to the independence of the ■ colonies, by making few exceptions to the general rule that a natural person, has one given and one surname, and, if sued in a court of justice, should be described by that name. The first exception is contained in section 23 of the code, which is as follows: “In all actions upon bills of exchange or promissory notes, or other *630written instruments, whenever any of the parties thereto are designated by the initial letter or letters, or some contraction of the Christian or first name or names, it shall be sufficient to designate such person by the name, initial letter or letters, or contraction of the first name or names, instead of stating the Christian or first name or names in full.” This statute is practically the same as paragraph 12, ch. 42, 3 and 4 William IV, and evidences the intention- of the legislature not to depart from beaten paths. Section 23, supra, does not authorize a plaintiff to implead a defendant by any other than his Christian name, except in the cases mentioned. Elberson v. Richards, 42 N. J. Law, 69.
Another exception is found in section 148 of the code, which provides: “When the plaintiff shall be ignorant of the name of a defendant, such defendant may be designated in any pleading or proceeding by any name and description, and when his true name is discovered, the pleading or proceeding may be amended accordingly. The plaintiff in such case must state, in the verification of his petition, that he could not discover the true name, and the summons must contain the words ‘real name unknown’ and a copy thereof must be served personally upon the defendant.” The defendant cannot invoke this statute for his protection because the county did not comply with its terms. There are no other exceptions in the code to the general rule, and they are good evidence that none other were intended unless granted by some other statute.
That this court is committed to that doctrine plainly appears from the discussion in Butler v. Smith, 84 Neb. 78. Our code was copied from the Ohio code, and upon a consideration of the sections of that code, identical with sections 23 and 148 of ours, the supreme court of that state held in Uihlein v. Gladieux, 74 Ohio St. 232, that substituted service of process against a defendant sued by a fictitious name is void, and that an allegation in the bill of particulars that the real name of the defendant is unknown is equivalent to a statement that the name em*631ployed is fictitious. The action in that case was at law-, but the principle controls.
The action prosecuted by the county attorney was against “H. Emerson, first name unknown.” This recital appears in practically all of the subsequent proceedings and is included in the sheriff’s deed, so that all persons claiming thereunder knew that the owner of the real estate liad been sued by a fictitious name.
The legislature, by authorizing the owners of certificates of tax sale to maintain an action against the land where its owner is hot known, clearly indicated its intent not to further depart from the general rules in actions for the enforcement of tax liens. The law has been uniformly thus construed heretofore, and, if further exception is to be made, it should be authorized by the legislature. Of course, where the defendant appears or Avhere process is served upon him personally, the reason for the rule fails, and decisions in those cases are without value in the instant one.
If the major premise in the majority opinion is accepted, the conclusion is not sound; That premise is that, where one accepts title to real estate by a name, fictitious or otherwise, he is estopped by the recitals in his deed to thereafter deny that his name is correctly stated therein. In other words, there is an estoppel by deed. A tax purchaser, however, does not claim under the former owner of the real estate, or under any deed other than the one executed by the individuals designated by law to convey, not the former owner’s title, but an independent title to the grantee.
If, although the asserted estoppel is created by recitals in a deed, the uniform rules of law with respect to such estoppels are to be ignored, there is nothing in this record to create an estoppel. The action having been prosecuted by the county without an antecedent administrative sale was not authorized by law, although the decree could not be. successfully assailed in a collateral proceeding. Logan County v. Carnahan, 66 Neb. 685. Harrington *632Emerson was not responsible for the action; he was bound to anticipate that his land might be sold by administrative proceedings if he did not pay the taxes, or that after an administrative sale, but before deed, the holder of the certificate of tax sale might maintain an action against the real estate, but he should not be charged with notice that the county would maintain an action without legal authority whereby his land would be sold to pay that tax.
The record discloses that the defendant paid less than |2 an acre for the land. This court has carefully protected the owners of real estate against tax deeds executed in administrative proceedings. Why should it look with indulgence upon tax deeds issued in actions not authorized by law? Why should it strain the principles of estoppel to take from the plaintiff his property and give it to a stranger?
The decree of the district court protects the defendant by requiring the plaintiff to pay all money invested by the defendant in the land, whether to satisfy the taxes or to pay for improvements made thereon, with legal interest; it does equity between the litigants, and respects the former decisions of this court, and should be affirmed.
Fawcett and Rose, JJ., concur in this dissent.