On the MeRIts.
DUFO'UR, J.The plaintiff, alleging a purchase by him at tax sale of an undivided half interest in certain real estate and the expiration of a year -without redemption, sues the defendant for a partition. *
The defense is that a tender was made within the time and in the manner required Ity law, and was refused and that plaintiff’s title, thereby, was divested.
The evidence satisfies us that Martinez’ ownership at the time of the sale was never questioned by t'he plaintiff and1 that a sufficient tender was seasonably made and refused.
It follows that, from that moment, the tax title was defeated. Busha vs. Register, 3324 of our docket, affirmed by Supreme Court.
No consignment is necessary; Section 65 of Act 170 of i'898. cited by plaintiff says that, in certain cases, the redemption money may be deposited with the tax collector, not that it shall or must be.
Therefore the plaintiff, being without title, had' no standing to ask for a partition, and to this extent we agree with the district Judge. But we think he erred in making the defendant pay costs when the judgment was in his favor. The plaintiff’s sole claim was for a partition and his demand was rejected; the defendant *62urged that plaintiff be decreed to be without title and he was successful. The rule of law is that costs follow the judgment The plaintiff’s interest was protected by fnakin-g pre-payment of the tender 'money a condition precedent of the cancellation of his tax title, and no further judgment was necessary, ordering defendant to pay plaintiff such amount. The fact that such further order was made when plaintiff did not pray for any suoh relief, cannot in law or in equity fasten the costs on the successful litigant.
December 12th, 1904.Judgment amended by condemning plaintiff to pay -costs of the lower Court, and as amended, it is affirmed, at appellee’s cost.