dissenting.
I am unable to agree with the majority opinion.
James E. Lowery, appellant, filed his bill in chancery against the city of Norfolk. It alleges that appellant is the fee simple owner of two tracts of land, located in the city of Norfolk and derived by devise from his father; that appellee has instituted garnishment proceedings against appellant’s property to enforce payment of certain delinquent taxes assessed against Susan B. Lowery, who was the life tenant of said land, and the prayer is:
“* # * that the court will decree and declare that the taxes levied and assessed by the city of Norfolk for the years 1929, 1930, 1931, 1932, 1933, and that proportionate part of 1934, embraced within the life tenancy of Susan Barrom Lowery against the aforesaid tracts of land, do not constitute valid claims and liens enforceable against complainant’s estate in said land; that the court will decree and require the city of Norfolk to strike from its public records said taxes complained of, and that complainant may have all such other, further, and general relief as the nature of his case may require, and to equity shall seem meet.”
The case was heard upon the bill of complaint and the answer of appellee. The trial court determined that the taxes assessed against the property were a lien on the remainder *504interest of the appellant. From that decree this appeal was allowed.
The facts are not in dispute. In the year 1908, Thomas Lowery, father of appellant and Susan B. Lowery, died testate. By his will he devised two parcels of real estate in the city of Norfolk to his daughter, Susan, for life, with remainder to his surviving children. This real estate was duly assessed for city taxes in the name of the life tenant from the year 1909 to and including the year 1934. The life tenant paid the taxes for several years but failed to pay any taxes assessed against the land for the years from 1929 to 1934. Upon the death of the life tenant in 1934, appellant became the fee simple owner of the land.
It is admitted that the taxes were properly assessed and are unpaid and that no interest is involved in this case save that of appellant. The sole question for determination is whether under the provisions of section 89 of the present charter of the city of Norfolk, city taxes assessed against real estate in the name of Susan B. Lowery, a life tenant, constitute a lien on the remainder interest of the appellant in said real estate.
It is the contention of appellant that the court erred in holding that appellee has a lien upon the remainder interest, for unpaid taxes accruing against the real estate during the life-time of a life tenant. In support of this contention the decision of this court in Tabb v. Commonwealth (1900), 98 Va. 47, 34 S. E. 946, is relied upon.
It is true that in the Tabb case this court, speaking through Judge Riely, held that, for state and city of Richmond taxes assessed against the life tenant, the lien was only upon the life estate and did not extend to the remainder. It is to be observed, however, that the question involved in that case is not the question herein involved. At the time of that decision, both the statute and the city charter provided that “there shall be a lien on all real estate for the taxes and levies assessed thereon.” Subsequent to the decision, the city of Richmond and the city of Norfolk had their charters amended so as to provide: “There shall be a lien on all *505real estate and on each and every interest therein for city taxes assessed thereon.” (Italics ours).
In the year 1918, appellee secured its present charter which contains this provision:
“Sec. 89. There shall be a lien on all real estate and on each and every interest therein for the City taxes assessed thereon, from the commencement of the year for which they were assessed and also for all local assessments which may be made thereon according to law.”
In construing an identical provision of the charter of the city of Richmond, in the case of Powers v. Richmond, (1918), 122 Va. 328, 94 S. E. 803, Judge Prentis, after discussing the amendment to the Richmond charter, had this to say:
“* * * These amendments to the charter of the city were passed at the session of the legislature immediately succeeding the decision of the case of Tabb v. Commonwealth, 98 Va. 47, 34 S. E. 946, 51 L. R. A. 283, which held that neither State nor city taxes assessed on real estate held by a life tenant constituted a hen upon the interest of the remaindermen in property so assessed. The avowed purpose of securing these amendments to the charter was to secure to the city a hen on such interests, and to this end section 75 provides, that there shah be a hen on ah real estate and on each and every interest therein for city taxes assessed thereon from the commencement of the year for which they are assessed; * # *”
In defining the status of the remaindermen, when the life tenant has failed to pay all taxes assessed against the property, Judge Prentis employed this language:
“The property here involved was as weh the property of the remaindermen as the property of the life tenant, and it is for the benefit of the remaindermen that it is assessed in the name of the life tenant, and that the law imposes a personal liability therefor upon him as Well as the duty of paying the taxes as they accrue; but if the life tenant fails in that duty, such failure cannot reheve the property of the remaindermen from the hen, though they are not personally liable for the taxes. Their property is hable, and Section 168 of the Consti*506tution requires that all property shall be taxed. So that the results in this case are strictly in accord with the intent of the Constitution, and to relieve the property in this case would be to exempt the estate of the remaindermen from taxation during the period when the life tenant held it.”
Counsel for appellant seek to draw a distinction between the charter of the city of Richmond and the charter of the city of Norfolk by adverting to the charter provisions affecting the title acquired by a purchaser in case of a delinquent tax sale of the real estate. As heretofore stated, the question of title is not involved herein. The question of title can only arise when the land is sold under a decree of court in an equity suit. In that event the purchaser of the land will get such title as any other purchaser at a judicial sale obtains.
In addition to the Tabb case, supra, counsel for appellant rely upon the following cases to sustain their contention: Commonwealth v. Wilson, 141 Va. 116, 126 S. E. 220, Glenn v. West, 106 Va. 356, 56 S. E. 143; and Patterson v. Old Dominion Co., 149 Va. 597, 141 S. E. 759. These cases did not involve any lien for taxes under any city charter provision similar to the lien in the case at bar, and, therefore, are not in point.
It conclusively appears that the amendment to the charter of the city of Norfolk, secured in 1918, was for the purpose of avoiding the decision in Tabb v. Commonwealth, supra. There is no doubt in my opinion that the avowed purpose has been accomplished. Under the provision of section 89 of its charter, the city acquires a lien against the res, without regard to the individual ownership of the land, whether it be for life or in remainder.
The conclusion reached is in conformity with the decision in Powers v. Richmond, supra, and it therefore follows that I am of the opinion that the decree should be affirmed.