On Petition eoe a Reheaeing.
Best, C. —This petition has been earnestly pressed, and we have again carefully examined all the questions involved in this case. The first paragraph of the complaint concedes the legal assessment of the taxes for which the land was sold, and, in support of the relief sought, alleges that the sale was made without notice, and while the owner had sufficient personal property with which to pay his taxes. It is insisted that a sale made under these circumstances is not only void, but that the lien of the State is not transferred, and that a court of equity will set aside such sale without requiring the owner to pay the taxes legally due from him. The omission to advertise the land for sale, or the failure to first exhaust the owner’s *364personal property, will certainly defeat the purchaser’s title. This has often been decided, and is thoroughly settled. It does not, however, follow that a court of equity will set aside such sale unless the owner will pay the taxes legally due. This duty rests upon him, and the fact that his taxes have been paid by a purchaser at an illegal sale in no manner exonerates him from such duty. After the sale the duty continues, and so long as it remains undischarged a court of equity will not disturb the sale. This rule, the appellant concedes, obtains in a controversy between the State and the land-owner, but insists that it does not apply to a controversy between the land-owner and a purchaser. No authority is cited in support of this distinction, and we know of none; on the contrary, this rule has several times been applied by this court in controversies between land-owners and purchasers. Harrison v. Haas, 25 Ind. 281; McWhinney v. Brinker, 64 Ind. 360; Lancaster v. DuHadway, 97 Ind. 565.
Aside from the authority furnished by these cases, no reason occurs to us why this rule should not apply to all cases where a party who seeks equitable aid is not himself “ willing to do equity,” and we think it does apply. We, therefore, think that as the appellant did not pay, nor offer by his pleading to pay, the taxes legally due, the pleading was not sufficient, though it appeared that the sale was made without notice, and while the owner had sufficient personal property with which to pay the taxés.
As the second paragraph failed to show that some of the taxes for which this land was sold were not due, and these taxes were not paid, nor any offer made to pay them, it was likewise insufficient.
The conclusion of the court upon the facts found, that the appellee acquired a lien upon the land in dispute for the amount of the purchase-money, is strenuously assailed for various reasons. Every position taken, however, in opposition to such conclusion, is based upon the assumption that this land was not assessed. If not assessed, of course the *365appellee acquired no such lien, because there was no lien to acquire. The land, however, was, as we think, for the reasons given in the original opinion, assessed. It is true that it was misdescribed, and that such misdescription ran through all the proceedings, but this fact, though it vitiated the sale, did not destroy the lien of the State. The lien existed, and though the sale was inoperative to convey the title, it was effectual to transfer the lien. The mere misdescription of land intended to be assessed, and which can be ascertained, does not impair the lien of the State, nor prevent a purchaser from enforcing such lien by the appropriate remedy. Cooper v. Jackson, 71 Ind. 244; Sloan v. Sewell, 81 Ind. 180; Parker v. Goddard, 81 Ind. 294. A private sale of land for taxes after notice, and as prescribed by the statute, will transfer the lien of the State to the purchaser. McWhinney v. City of Indianapolis, 98 Ind. 182. The sale made in this case, therefore, operated as a transfer of the lien of the State to the appellee, notwithstanding such misdescription, and he was entitled to an order for its enforcement.
Filed March 18, 1885.In the original opinion the conclusion was reached that the appellee was entitled to interest at the rate of twenty-five per centum upon the amount of the purchase-money, but subsequent reflection has induced the conclusion that the proper construction of sections 3 and 4 of the act of March 5th, 1883, Acts 1883, p. 95, which control the recovery of interest, only entitles the appellee to twenty per centum upon the amount of such purchase-money, and all subsequent taxes paid. The 3d section fixes the rate at twenty per cent., and the 4th section only applies to sales made under previous laws allowing a lower rate of interest. The original opinion is, therefore, thus modified, and the petition for a rehearing should be overruled.
Per. Curiam. — The petition is overruled.