— I. The plaintiffs, upon the agreed statement of facts, as embraced in the first paragraph, are the owners of the patent title; or the title originally derived from the United States. For, no notice to Ditman being shown of the prior sale or conveyance by his grantor to Smith, his title being acquired and recorded before the record of such prior conveyance, would be paramount to it. The plaintiffs are the owners of such paramount title by conveyances from Ditman and Jack, successively, to themselves.
II. But the patent or original title was broken up or supplanted by the tax sales and conveyances as specified in the second paragraph of the agreed statement of facts, as above shown. And it appears therefrom that the defendant Wilson has, by conveyances from the purchasers at such sales, acquired *159and United in himself the complete tax title which, as we have before and frequently held, is in such cases superior and paramount to the patent title. Had the statement of facts concluded with the close of the second paragraph, as above set out, it would have left Wilson the owner in fee and entitled to a judgment accordingly.
III. After the sales for taxes under which the defendant Wilson acquired his title, the land was again sold for the taxes becoming thereafter delinquent. The title derived under this sale, it being conceded regular and legal, must be paramount to the title held by Wilson. The question then is, which party holds this title or the right to it ?
The plaintiffs claim this title by virtue of the assignment of the original certificate of purchase, the deed made by the treasurer thereon to such assignee, and conveyances from him down to themselves. The defendant Wilson claims the right to the title, by virtue of the assignment to him by the tax purchaser of a duplicate of the original certificate of purchase. If Wilson acquired the better right by the assignment of the duplicate to him, his equity would be paramount, and under our practice allowing equitable defenses to law actions, no judgment could properly be rendered against him.
While our statute makes the certificate of purchase of land at a tax sale assignable, so as to vest “ all the right and title of the original purchaser ” in the assignee; yet, it also specifies the manner of the assignment, to wit: “ Shall be assignable by indorsementThe plaintiffs hold the title acquired under the original certificate by “ indorsement ” thereon, and without any notice of any equity or interest therein by another. Their equity is, therefore, equal to the equity of the defendant, and they having thus acquired their title in the manner provided by the statute, are clothed with the legal title; thereby uniting in themselves both the legal and equitable title. The defendant, by the assignment to him of the duplicate certificate, an instrument not authorized by or known to the law, only acquired an equity. Where the equities are equal the legal title must prevail. In order to *160enable tbe defendant to overturn a subsequent assignment of tbe original certificate, made in tbe manner directed by statute, and wbicb passes a legal as well as equitable right, be must show notice or its equivalent to sucb legal assignee, before be acquired bis rights. This be bas not done. He was not in possession, or is not shown to have been, until after sucb legal assignment and tbe conveyance to tbe assignee. The plaintiffs, by their purchase, acquired all tbe rights of their grantor.
We need not discuss tbe question respecting tbe obligar tion of an owner to pay bis taxes and not suffer bis land to be sold; or bis inability to acquire a title by purchase at sucb sale; for, as we have above seen, tbe plaintiffs were not tbe owners at tbe time of tbe sale, nor when tbey acquired tbe tax title. It may be conceded, as claimed by appellant’s counsel, that tbe defendant’s rights would prevail as against Price, if be was tbe owner now, either upon tbe plain equity or by estoppel.
Affirmed.