The opinion of the court •was delivered by
Mr. Justice McIver.The plaintiff brought this action against the defendant to recover damages for certain trespasses alleged to have been committed by him on a tract of land claimed by the plaintiff. The defendant, in addition to a general denial, sets up title in himself to said land, acquired at a tax sale made on (5 th February, 1882. At the trial it was admitted that plaintiff had title up to the time of the tax sale, and it was “proved that every step required to be taken by the various acts of the .general assembly of the State for the proper carrying out of delinquent land sales, was in this instance strictly complied with; the only exception thereto claimed by the plaintiff being that there was no issuance of the tax execution, nor a return of nulla bona thereon — the defendant claiming'that neither was necessary, and that even if it were, the testimony showed that the same had been practically complied with.”
The foregoing extract from the “Case” is followed by the testimony relied on to show that the alleged requirement in reference to the issuing and return of the execution had been practically complied wdth. But as the Circuit Judge held, and so instructed the jury, that the issuing of an execution was not necessary to the validity of the title set up by defendant, he made no ruling and submitted no question to the jury as to whether the alleged requirement of an execution and return thereon had been practically complied with, and therefore that matter cannot be considered. The Circuit Judge having instructed the jury as above indicated, they found a verdict in favor of defendant, and plaintiff appeals upon the several grounds set out in the record, which practically make but two questions: 1st. Whether the judge erred in charging the jury upon the facts. 2nd. Whether there was error in holding that the issuing and return of an execution was an essential prerequisite to the validity of the tax sale.
*3731 *372The first question presents but little difficulty ; and, indeed, was not discussed in the argument here by appellant’s counsel. It is very manifest from a consideration of the whole charge that *373the constitutional provision was not violated; but, on the contrary, every question of fact was fully and fairly left to the jury. The utmost that can be said is, that- in- those portions of the charge in which error is imputed by the exceptions, the judge simply repeated to the jury certain undisputed facts, and this certainly was no violation, either in spirit or letter, of the constitutional provision.
2 The real controversy arises under the second question. There can be no doubt that before a man’s land can be lawfully sold for the non payment of taxes, every step required to be taken by the law’ authorizing such sale must be shown to have been taken; in other words, the mode prescribed by the statute must be followed in every particular. This, indeed, is conceded, and therefore the practical question in this case is, whether the issuing of an execution or warrant against the personal property of the defaulting tax payer, and a return of nulla bona thereon, is an essential prerequisite to the exercise of the right to sell land or offer it for sale at a delinquent land sale. This depends upon the construction which should be given to the terms of the act of 1880 (17 Stat., 380), under which the tax in this case was levied — more especially the 9th and 10th sections of that act. Section 9 provides, so far as the matter under consideration is concerned, “That when the taxes and assessments, or any portion thereof, charged against any property * * * shall not be paid on or before the 31st of October, 1881, the county treasurer shall proceed to collect the same by distress or otherwise as now prescribed by law, * * * and if the amount of such delinquent taxes, assessments, and penalties shall not be paid on or before the fifteenth day of November, 1881, or be collected by distress or otherwise, then the same shall be treated as delinquent taxes on such real and personal property, and shall be collected by sale of such real and personal property as hereinafter prescribed.”
So much of section 10 as is applicable to the present case reads as follows: “All personal property subject to taxation shall be liable to distress and sale for the payment of taxes and assessments hereunder ; and at any time after any taxes or assessments shall become due, according to the provisions of this act, the *374county treasurer, by himself or deputy, may distrain sufficient personal property of the party against whom such taxes or assessments are charged, if the same can be found in his county, to pay the taxes or assessments so due, with any penalty charged or chargeable thereupon and the costs that may accrue;” and after advertising the same for the time and in the manner prescribed, proceed to sell the same or so much thereof as may be necessary, unless said taxes, assessments, penalties, and costs are paid before the day appointed for the sale.
From an examination of these two sections, it seems to us that before any real estate can be sold at a delinquent land sale, besides other requirements which need not be mentioned here, as it is conceded that all the other requirements were complied with, that an unsuccessful effort must have been made to enforce the payment of the taxes on the land by distress and sale of the personal property of the defaulting tax-payer; and this can be best evidenced by issuing an execution against the personal property and showing that it had been returned nulla bona.
It will be observed that section 9 provides that when the taxes “charged against any property,” which, of course, includes real as well as personal property, shall not be paid on the day specified, the county treasurer is imperatively required to proceed to collect the same by distress or otherwise, as now prescribed by law — the language is, “shall proceed to collect the same by distress,” &c., and the section proceeds to declare that if such taxes shall not be paid, “or be collected by distress or otherwise,” on or before a certain other day specified, “then the same shall be treated as delinquent taxes on such real and personal property, and shall be collected by sale of such real and personal property as hereinafter prescribed.” The use of the word “then” italicized in the extract of the section just quoted, is very significant; for it necessarily implies that the legislature intended that, when taxes were unpaid upon “any property,” whether real or personal, the first step which the county treasurer was required to take was by distress, and if that failed, then, not before, the land could be placed on the delinquent list and offered for sale as delinquent land. It is true that there is an omission in this section to declare in express terms that personal property, and not *375real estate, shall be distrained; but this omission, more apparent than real, is supplied by the terms of the very next section, which authorizes the county treasurer to distrain sufficient personal property to pay the taxes and assessments levied under that act, and there is no provision, either in this section or in any other act, so far as we are informed, passed since the adoption of the present system, which authorizes a distraint of real estate; if, indeed, such a term can be properly applicable to that species of property.
So much of section 10 as relates to this matter reads as follows: “All personal property subject to taxation shall be liable to distress and sale for the payment of taxes and assessments hereunder, and at any time after any taxes or assessments shall become due according to the provisions of this act, the' county treasurer, by himself or deputy, may distrain sufficient personal property of the party against whom such taxes or assessments are charged, if the same can be found in his county, to pay the taxes or assessments so due,” &c., going on to provide how and when the personal property distrained may be sold. It seems to us that the words “hereunder,” “any,” and “such,” which we have italicized in this quotation from the section, show very clearly that the intention was to authorize the enforcement of the payment of any taxes levied under that act, whether upon real or personal property, by distress and sale of personal property. The explicit declaration contained in the section is that all personal property, except such as may be exempt from taxation, shall be liable to distress and sale for the payment of taxes and assessments here-, under, which must necessarily mean either under that section or under the act in which the section is embraced. It cannot mean the former, for there are no taxes or assessments levied by that section, and therefore it must mean the latter, as there are taxes and assessments levied under the act. But the language following makes this more plain, where it is provided that “after any taxes or assessments” shall become due according to the provisions of this act, the county treasurer * * * may distrain sufficient personal property of the party against whom such taxes or assessments are charged” to pay the same, shows beyond all dispute that the purpose was, not to make the personal property of *376the defaulting tax-payer liable only for the taxes on that species of property, but to make it liable for any taxes assessed under the provisions of the act, which embraced real as well as personal property as subjects of taxation.
It seems to us that the true construction of the 9th section of the act is, that when taxes upon any property, either real or personal, are unpaid on the day appointed for that purpose, the county treasurer must first proceed to enforce payment by distress, and if that mode proves unavailing by a day specified, then, and not before, the land may be placed on the delinquent land list and disposed of as provided by law; and that the purpose of section 10 was to declare what kind of property — personal property — -should be liable to distress and sale for the non-payment of taxes, whether assessed upon either real or personal property. The scheme of the tax laws seems to be that, in enforcing the payment of taxes upon any species of property, the personal property of the defaulting tax-payer must first be exhausted before the sovereign right to sell the land — perhaps the homestead- — -can be exercised. This does not in any way interfere with the statutory provision that taxes shall be a first lien upon the property taxed; for without impairing the force and effect of such lien, it is entirely competent for the legislature to require that resort shall first be had to the personal property. It is well settled that while it is the duty of executors or administrators to pay a mortgage debt out of the personal property, that being the primary fund for the payment of debts, to the relief of the mortgaged premises, yet that does not impair the lien of the mortgage on the land covered by it, which may still be resorted to if the primary fund be insufficient. See Wilson v. McConnell, 9 Rich. Eq., 500, and the cases therein cited, as well as Henagan v. Harllee, 10 Rich. Eq., 285. So here, while section 170 of the General Statutes gives the State a lien on the property for the taxes assessed upon it, yet the law, as we have seen, providing that resort must first be had to the personal property does not impair the lien on the particular property upon which the taxes are assessed, which may still be enforced, if the primary fund shall prove insufficient.
It seems to us, therefore, that the Circuit Judge erred in instructing the jury that the issuing of an execution was not art *377essential prerequisite, and thus practically withdrawing from the jury the question whether this requirement had been complied with.
The judgment of this court is, that the judgment of the Circuit Court be reversed, and that the case be remanded to that court for a new trial.