'On Petition por a Rehearing.
Bicknell, C. C.The appellee claims that if a tax sale of land be void, the purchaser will not be entitled to a lien on the land for his purchase-money.
The cases cited in the principal opinion show that this claim can not be sustained. See, also, Ward v. Montgomery, 57 Ind. 276; Hosbrook v. Schooley, 74 Ind. 51; Cooper v. Jackson, 71 Ind. 244; Lawson v. Hilgenberg, 77 Ind. 221. In Crecelius v. Mann, cited in the principal opinion, this court said, by Elliott, J.: “ It is expressly declared by statute, and has often been decided by this court, that, although the tax sale be utterly void, the purchaser * * will be entitled to hold and enforce a lien for the taxes paid by him. The theory of the law is that the purchaser at such sale succeeds to the lien of the State.”
The appellee claims that this doctrine ought not to be applied to the present case, because, as he avers, section 247,1 R. S. 1876, p. 127, which authorized private sales by the county auditor of forfeited or unsold tax land, is unconstitutional, and he insists that no right can be acquired under an unconstitutional law. If it were conceded that such sales were ‘unconstitutional, so that the auditor’s conveyance was invalid and ineffectual to convey title, the lien of the State for the taxes would not thereby be impaired. Section 256, 1 R. S. 1876, p. 129, declares that, “If any conveyance, made by *298the county auditor, pursuant to a sale made for non-payment of taxes, shall prove, to be invalid and ineffectual to convey title, for any other cause than such as are enumerated in the preceding section, the lien which the State had on such land for its rightful proportion of taxes, * * shall remain in full force, and shall be transferred by such deed to the grantee,” etc.
Filed June 21, 1884.In the present case, if the county auditor had no constitutional power to make a private sale of forfeited or unsold land for taxes, then his deed was invalid and ineffectual to convey title; if he had such constitutional power, his deed was invalid and ineffectual to convey title for otjier reasons, stated in the principal opinion, which were not “ reasons enumerated in said preceding section.” The deed being invalid, the State’s lien for the unpaid taxes is transferred to the grantee, whatever be the cause of such invalidity, provided it be not one of the causes enumerated in the said preceding section. The petition for a rehearing ought to be overruled.
Pee Cueiam. — The petition is overruled.