The opinion of the court was delivered by
McIver, A. J.According to the view which we take of this *332case, it will not be necessary to consider the several requests to charge submitted by the plaintiff at the trial; for we do not think they were pertinent to the case as made, and therefore a refusal to charge them does not constitute such error of law as would warrant the setting aside. of the judgment below, even though, abstractly considered, they may not have been free from all legal exception, about which, however, we are not to be understood as expressing any opinion. We confess it somewhat difficult to understand precisely what was meant by the charge to which exception was duly taken. Giving to it, however, the construction claimed for it by the appellant, as the one most favorable to the success of his appeal, that it was practically a chai’ge that the jury should find for the defendant, we think it was not subject to any legal exception. The case of the plaintiff rested upon the validity of the deed from the county auditor as sufficient to vest in him title for the proportion of the land claimed, and we think it was wholly insufficient for that purpose, and therefore an explicit direction to the jury to find a verdict for the defendant would have been fully warranted, as the question of the sufficiency of the deed was a question of law only, under the uncontradicted facts appearing in the case. It was not and could not be pretended that the land was sold as “ forfeited ” land, the only taxes duo thereon being the.taxes for 1871. It must, therefore, as the plaintiff himself alleges in his complaint, have been sold for delinquent taxes, and there is no allegation or proof that the land had ever been declared forfeited, as indeed it could not very well have’ been, if the only taxes in arrear thereon were those for the year 1871, as seems from the auditor’s certificate to have been the case, the sale having been made in 1872. Hence, the sale must have been by virtue of the provisions of the fourth section of the act of March 12th, 1872, (15 Stat 163,) and not by virtue of the provisions of the third section of that act. If so, then it follows that the deed from the county auditor, upon which alone the plaintiff based his claim, was wholly ineffectual to convey any title to him. For while the auditor is authorized to “ execute a warranty deed to the purchaser ” for any lands sold under the provisions of the third section of the act, there is no such authority conferred upon *333him in the case of sales made under the provisions of the fourth section of that act, and his deed, therefore, has no more force and effect than if it had been signed by the sheriff, the coroner or any other county officer.
The judgment of the Circuit Court is affirmed.
Judgment affirmed.
Willard, C. J., and Haskell, A. J., concurred.