dissenting.
I am unable to agree with the opinion of the majority because their conclusion, as I see it, is based upon an erroneous construction of the terms of the trust deed as to the reserved rights of the grantor thereunder and a misapprehension of the facts in the case.
The first error is the holding that John R. Riddick retained the power to revoke the trust at his election.
The deed of April 1, 1921, conveyed the legal title to the property therein described to the trustee, with covenants of general warranty for the benefit of Lizzie V. Riddick “upon the following uses and trusts and none other to-wit:”
“ (1) That unless and until the said Lizzie Y. Riddick shall forfeit the estate hereby created for her benefit,” the net revenues from the properties were to be paid by the trustee to her after payment of costs of collection, insurance, repairs and taxes. ■
“(2) That unless and until the said Lizzie Y. Riddick shall forfeit the estate hereby created for her benefit,” the property might be conveyed by deed or deeds to be signed by the trustee and her, the proceeds of such sale to be reinvested by the trustee in other income yielding real estate.
“ (3) That any profits and accretions to the trust property” were to be reinvested by the trustee.
“ (4) That unless and until the said Lizzie Y. Riddick shall forfeit the estate hereby created for her benefit,” she should have the power to dispose of the whole trust estate by will, and upon her death intestate the trustee should convey the same to such person or persons as answered the description of her heirs-at-law.
Then follow the covenants of Mrs. Riddick containing the terms and conditions upon which the husband might rely for a forfeiture of the fights and estate conveyed.
The deed was signed by both the trustee and the beneficiary because of the included covenants. It made an *385absolute conveyance of tbe real estate to the trustee for the use and benefit of Mrs. Riddick, subject to be defeated only upon the happening of the certain contingencies therein named. Riddick divested himself of the legal title, reserving to himself only a mere possibility of reverter based upon the happening of a subsequent condition. He gave up title, possession, and control. By no act of his own, in the absence of the happening of the named contingencies, could he regain the title, control, or possession. His election to revoke the trust and his power to control it were entirely dependent upon the failure of the wife to perform her covenants.
The record shows no violation of any of the conditions upon which a right of forfeiture could have been claimed. In fact, Riddick recognized this by his deed of June 4, 1930, whereby he quit-claimed and released to his wife all of his right in the property.
Of course, the provision in the covenant that the wife unite with her husband in conveying property then owned or thereafter to be acquired by her husband, did not refer to the property described in the trust deed. It is not here otherwise contended by the city. The property conveyed by the husband -was for the purpose of furnishing support to the wife and children free from the claim of others so long as the covenants were observed. Any other construction would completely nullify it.
The only contentions of the city are that the error in the name was immaterial and that Riddick had such an interest in the property as was sufficient to sustain the assessment in his name.
The record does not show that Riddick, a colored man, and his wife were living together. In fact, it was suggested outside of the record that the trust agreement was in the nature of a marriage settlement because they were living apart. It is apparent from the agreement that husband and wife did not have complete faith in each other. Each desired to be protected by a written agreement.
*386The terms of the trust required'that the taxes should be paid by the trustee. Mrs. Riddick was entitled to receive from the trustee only the net revenue after the payment of the costs of collection, insurance, repairs and taxes. She had the right to assume that the trustee was performing his duties. There is not a word in the record to show that she knew that the taxes had not been paid.
The owner of property, for the purpose of taxation, means the legal and not the equitable owner. Property standing in the name of a trustee should be assessed for taxation against such trustee. Powers v. City of Richmond, 122 Va. 328, 94 S. E. 803.
With regard to taxation, “due process of law” demands that it be accurately listed in such manner as to inform persons interested in the property of its owner and the amount of the tax. Brophy v. Commonwealth, 134 Va. 250, 114 S. E. 782.
This case does not involve a mistake in the name of the owner but a mistake in the ownership of the property. It is not a mistake in writing or spelling' the owner’s name but a disregard of the name of the true owner. School Board v. Patterson, 111 Va. 482, 69 S. E. 337.
It seems to be clear that under the statutes then controlling, the property was not assessed from 1922 to 1926, inclusive, in the name of the person who owned it, according to the deed books of the city of Norfolk. Virginia Code 1919, sections 2270, 2280 and 2284.
The trial court held the assessment for the years 1931 to 1936 erroneous because Riddick, by his deed in 1930, divested himself of all interest in the property. We are told that the assessments for the years 1922 to 1930', inclusive, were held valid because that court considered the contingent interest' of Riddick sufficient to sustain the assessment in his name.
I find no authority, and none has been cited, which holds that one who has a mere contingent interest in *387land without the usufruct, control, or occupation, should he assessed for taxation as the owner, nor do I think that any good reason exists therefor. He is not the owner in fact or in law.
If the property in question here had been sold for taxes delinquent in the name of J. R. Riddick for any one of the years from 1922 to 1930, inclusive, then the purchaser would have become vested with only such right or title to such estate as “was vested in the party assessed with the taxes or levies on account whereof the sale was made, at the commencement of the year for which said taxes or levies were assessed.” Virginia Code 1919, section 2488.
In this case, such a purchaser, at a tax sale, would have taken only the right or title held by Riddick, a mere contingent interest until 1930, and no interest thereafter.
The city acquired, by virtue of the assessment of the tax and its non-payment, no lien against any interest in the land except against such right and title as was possessed by Riddick. If that lien is invalid for the purpose of passing title of the true owner to the purchaser at a tax sale, it is just as invalid and ineffective as a lien in favor of the city against such owner.
I think it is manifest, under the circumstances and facts of this case, that the assessment was erroneous, and that by virtue of the error, the beneficiary under the trust deed was misled to the prejudice of her rights. As said before, there is no evidence that she knew that taxes had not been paid, and if her husband did have knowledge of that fact, his knowledge is not imputable to her. Neither she nor her estate ought to be penalized with a charge for the unpaid taxes, interest, and penalties thereon because of the failure of the assessing officer to comply with the plain requirements of the statutes. If the city must suffer a loss, it is by reason of the acts of its selected officers.
Htjdgiks and Egglestok, JJ., concur in this dissent.