dissenting. — I do not concur in the reasoning or conclusion of the foregoing opinion. The land in controversy was sold to Scribner, Burroughs & Company, at a tax sale, on the 4th day of November, 1872, for $20.06. On the 26th day of October, 1875, the land in controversy was duly sold on execution to plaintiffs, for the sum of $100. Notice of the expiration of the time of redemption from the tax sale was duly served, and was completed on the 17th day of February, 1876. On the 3d day of June, 1876, the defendant paid into the office of the clerk $106.02, for the plaintiffs, in redemption of the said land from the sheriff’s sale. On the 16th day of June, 1876, a treasurer’s deed was executed to the plaintiffs for the land. On the 15th day of July, 1876, the plaintiff received from the clerk of the District Court $106.02, the amount paid by tbe defendants in redemption from tbe sheriff’s sale. On the 20th day of March, 1877. plaintiffs executed the assignment set out in the majority *583opinion. It thus appears that before the defendants paid the money to the clerk to redeem from the sheriff’s sale the time of redemption from the tax sale had expired, the notice prescribed by statute had been given, and the plaintiffs had become entitled to a tax deed.
The plaintiffs made no false representation or concealment. The tax sale was a matter of public record, and the defendant, it must be presumed, paid his money with a knowledge of all the facts. This money remained in the hands of the clerk at the time the plaintiffs took their tax deed. So long as the redemption money remained in the hands of the clerk, it cannot be doubted that the plaintiffs were entitled to a tax deed. It is not claimed that the tax sale was not properly conducted. The tax deed executed pursuant to the sale, therefore, vested in the plaintiffs an absolute title to the property. If the money for redemption from the execution sale had been permitted to remain in the hands of the clerk, that is, if the plaintiffs had simply neglected to draw the money, it cannot be doubted that the plaintiffs’ title would have remained absolute. What, then, is the effect of the plaintiffs withdrawing this money from the clerk? Did that act operate to defeat a valid title already acquired? I think not. The most that can be claimed, I think, is that this money was appropriated by the plaintiffs without consideration, and that the defendant may, in an appropriate action, recover it. It is claimed, however; that the plaintiffs have, by the execution of the assignment, surrendered all claim to the property. The plaintiffs assign, transfer and set over the certificate and the lands described therein. The defendant was entitled to an assignment of the certificate of purchase, upon making- redemption from the sheriff’s sale. Code, § 3120. A written instrument may be assigned, and all the rights which it confers thus passed to the assignee. But an assignment simply of “land” is a mode unknown to the law of transferring either a legal or an equitable title. I think that the words “ and the lands described therein,” employed in the assign*584ment, mean no more than that the lands are assigned so far as that may be accomplished by a transfer of the certificate. It is claimed that, if this construction be adopted, the plaintiffs executed the assignment knowing that the defendant took nothing thereby. This does not necessarily follow; although the plaintiffs had received a tax deed for the land, they had no means of knowing that the defendant did not. intend to contest the validity of that deed. They could not know, certainly, that the tax title would not be successfully assailed.
Indeed, from tho fact of the defendant tendering redemption from the execution sale, after the time for redemption from tho tax sale had expired, the plaintiffs had a right to believe that the defendant had some real or supposed defense to the tax deed. The view of the majority, however, involves the conclusion that the plaintiffs voluntarily surrendered a valid tax title upon the lands for nothing, for it is not claimed that the redemption money amounted to more than the sum for which the land sold at sheriff’s sale, and interest. In my opinion the judgment of the District Court should be affirmed.
Mr. Justice Seevees concurs in this dissent.