The opinion of the court was delivered by
MR. Ohiee Justice SimpsoN.The plaintiff, Mary Owens, sought by the action below to partition a certain tract of land situate in Chester County between herself and the other parties named above as heirs at law of her father, William Owens, *160deceased, and also that defendant, Archy Owens, in possession, should account for rents and profits, &c. She sought further to subject the interest of her deceased mother, Sarah Owens, in said land to a claim which she desired to set up for attention and services to her said mother, since the death of her father, the said Sarah being all that time, and up to her death in 1882, insane and incapable of taking care of herself. All of the parties answered, except Margaret Mise, who did not answer. Mary Ballard, being a minor, answered by guardian ad litem. All but the defendant, Archy Owens, joined in the prayer for partition ; they denied, however, the claim of the plaintiff, Mary, for the compensation demanded. The defendant, Archy, claimed the land as his own by virtue of a deed to him from one James Ralph and by adverse possession, and he denied that it was subject to partition between the heirs at law of the said William Owens, his father. He also resisted the claim of the plaintiff, Mary, for services rendered to her mother.
The case was finally heard by his honor, Judge Witherspoon, upon exceptions to referee’s report. His honor, concurring with the referee, held, first, that in so far as the defendant, Archy, claimed under the deed from Ralph, his title was invalid, because Ralph claimed under a conveyance from the county auditor by purchase at a tax sale, which sale, not having been made according to law, was invalid. He also held that Archy could not claim the land by adverse possession under the evidence. Notwithstanding, however, that the defence of the defendant setting up title in himself could not avail, yet he denied the partition, because he found the title to the land in the State, the same having been forfeited to the State in 1871 as delinquent land, with no bidders. Reaching this conclusion, he declined to consider and adjudge the other points in the case, and he ordered and adjudged that the 8th exception of defendant to the referee’s report, alleging error in said referee’s failing to find that the William Owens land had become forfeited and the title thereto vested in the State, be sustained, and that plaintiff’s complaint be dismissed with costs.
Mary Owens, Jane Craig, Chester Pertuis, Elizabeth Jacks, Mary Ballard, David Owens, and Isabella Bennett excepted and *161appealed, raising in the main but two questions: First. That his honor erred in holding that title to the land in dispute had vested in the State by forfeiture; and, second. The county treasurer having received one hundred dollars at the forfeited land sale, and thereby the State and county taxes and all costs being paid, the title in equity, if not the legal title, is in the heirs of William Owens as tenants in common.
We agree with the Circuit Judge, that the land became forfeited and the title thereto vested in the State in 1871, when it was exposed to sale with no bidders. The Circuit Judge and the referee agree, that up to this time there had been no irregularity in the tax proceeding. The referee found that the land became delinquent for taxes of 1871, was duly advertised and offered for sale as delinquent, with no bidders, and the judge says there were no exceptions to these findings. All the conditions were present at that time to cause forfeiture. The land was placed on the tax duplicate, the taxes had not been paid, it was exposed to sale, and there were.no bidders, and under our act it was forfeited. There was no necessity for “inquest of office.” The language of the act is definite and distinct. Section 124, act of 1868, 14 Stat., 63. See, also, Burr. Tax., § 110, on this subject; McMillan v. Robbins, 5 Ohio, 28 ; U. S. v. Repentigny, 5 Wall., 211.
We agree, too, with the Circuit Judge, that the irregularities connected with the subsequent sale, which resulted in a conveyance from the county auditor, Brawley, to Ralph, under which the defendant, Archy, claims, were so great as to render that deed invalid, and therefore that it did not divest the title from the State ; and we think the Circuit Judge was right in declining to decree partition upon the legal title of plaintiff.
But under the circumstances of this case we are of opinion that there were equitable grounds for the partition worthy of consideration, or, at least, there was enough in the case in that direction to entitle the plaintiff, and the other parties asking partition, to have those grounds considered and ¿djudged. There seems to be no doubt that the State has been paid for the land, all taxes, costs, and penalties appear to have been settled in a sale which the tax officials made of the land after it had been forfeited, and *162tbe State now has no further claim upon it, so that the equitable title, at least, is in some one other than the State. Whether that equitable title is in the heirs at law, as a whole, or in some one of them alone, is a question to be determined by investigation, and is involved in the claim of the plaintiff for partition. So, too, the matter of rents and profits, in the event that it should be determined that there exists an equitable right to partition, would be involved. Also the claim of Mary, to subject her mother’s interest in the land, in the event that partition is decreed, is a matter which should be considered.
Now, to the end that these matters may be considered and adjudged, it is the judgment of this court, that so much of the judgment of the Circuit Court as dismisses the complaint, be reversed, and that the case be remanded to that court so that the other questions suggested above, raised by the exceptions to the referee’s report, and not considered in the decree herein appealed from, may be heard and determined upon the referee’s report, including the testimony taken by him and the exceptions thereto.