Dissenting Optnion.
Beejiudbz, C. J.This is apparently a suit to recover against the defendant a personal j udgment for a sum of money which the plaintiff alleges has satisfied taxes and penalties due on defendant’s property.
The defense is no canse of action, the general issue, prescription, that the amount did not enure to defendant’s benefit, etc.
In reality it is an action for the repetition of fill© price paid for the purchase of property, the title to which was annulled. The claim is urged l>3’ the evicted purchaser, not against the party to whom he has paid the price, hut against his vendor’s author.
The facts arc that the property was adjudicated on August 30, 1875, to the State, and afterwards, on May 15, 1876, as the property of the State to plaintiff.
Plaintiff’s pretensions to the ownership of the property were twice repelled as well by the State as by the Federal judiciary.
*360It does not appear that the State was a party to the suit in which it is claimed that the sale to her was a nullity. Until-the title to the State has been annulled so as to conclude the State, the title stands in her name.
Neither does it appear that the inscription of the title to the State was cancelled from the Conveyance office.
The plaintiff sues therefore as an evicted purchaser. IJis claim should have been urged against the State before the legislature, and not against her alleged author.
The defense of no cause of action was well founded and should have been sustained.
But taking the action to he one for the recovery of an amount voluntarily paid by the plaintiff1 to disencumber defendant’s property from several years taxes due on it, how can the plaintiff he permitted to ask a personal judgment against the defendant for the reimbursement of that amount, when it is considered that a delinquent taxpayer is not personally liable for the taxes dne on his real estate, and that such taxes can he satisfied when due, only out of the proceeds of the property on which the same are assessed and on which the law allows a lien to both the State and to municipal corporations, to whom the same may he due.
At the date of the adjudication, the Act of 1872, No. 73, which authorized the collection of taxes out of any property of the delinquent, had been amended.
Act No. 13 of 1876, p. 11, E. S., which became a law, from and after its passage, early in March, was t© the effect that all taxes due and unsettled, or to become due, were secured exclusively b3r a lieu and privilege on the property assessed.
The object of that act was formally to make claims for taxes, real elavins only, by preventing them from being urged in personam.
This was made apparent by Act No. 34, p. 56, E. S. 1877, which limited the lien of the State and city to the property assessed, and prohibited sheriffs and constables from executing writs for taxes on any other property.
In May, 1876, the State had only a right of action in rein, although hound to-proceed contradictorily with the owner of tho property. In the absence of the lien, secured by registry, the State could not have brought a personal action against the defendant.
When the plaintiff paid the sum, lie was not conventionally subrogated by the State, to the lien, which would have secured the pay*361ment oí the taxes, etc., had. the same been legally due, in case of tluv nullity of the sale.
Plaintiff was not a creditor of the defendant with privilege or mortgage, or even an ordinary creditor of his. He had no interest at stake which could have subrogated him legally to the rights of the State,, when he paid the amount.
There was no law then in existence transferring such lion on such payment.
• If plaintiff became a creditor when his title was annulled, he only acquired the claim or rights which the State could have exercised. The State could not, assuredly have proceeded m personam, for the obvious reason that delinquent tax-payers were not personally liable for taxes then due by property belonging to them. One is personally liable only where any property of his can be subjected to the payment of the claim. The Act of 1876 made the property only, not the owner, liable for the tax assessed and due.
If plaintiff acquired any claim, it would be one in rent against the thing. The proceeding in rem implies the existence of a lien or encumbrance on the property proceeded against. How could he exercise such a claim, when he acquired no lien and has none on the thing ?
Plaintiff stands in the predicament of one who pays a creditor whose claim affects real estate transferred to a third party who did not assume the debt due that creditor. As the party paying could not recover a personal judgment against the third party, who was not liable personally, so the plaintiff here cannot recover such judgment against the defendant who was not personally bound. 24 Ann. 29; 6 R. 407.
Plaintiff has attempted a speculation hieri eausa and has acted at his risk and peril. His remedy, whatever it be, is not in the present action against the defendant in this case. An evicted purchaser never was recognized the right to be reimbursed by the defendant, the purchase price paid to the seizing creditor who had a right of action in rein only.
The conclusions announced in the opinion of the majority are not supported by the decisions in the cases of Wedderstrand vs. Freyhan, 34 Ann., and Hopkins vs. Daunoy, 35 Ann., and other cases in which the purchasers at tax sales, subsequently annulled, recovered from the delinquent tax-payers restitution of the amounts paid by the purchasers for taxes, penalties, etc. The mere reading of the opinions in *362those cases shows that they presented facts and circumstances entirely different from the case at bar. They cover all cases in which the restitution of taxes, costs, etc., by the delinquent, was made the condition of recovering- possession of the property. In this case the owner was never divested of his possession, and the purchaser was defeated in his attempt to gain possession, and his purchase annulled.
The record contains no evidence that the taxes which he claims to have paid were due by the defendant, or had ever been legally assessed against his property.
If it be true that the property was validly adjudicated to the State on August 30, 1875, it belongs to the State at this date. The judgment annulling the sale by the State to the plaintiff, did not divest the former of her title to the property. It merely placed things in the condition in which they stood prior to the adjudication to plaintiff on May 15, 1876; in other words, it annulled the adjudication to plaintiff, nothing less, nothing more.
It is manifest that, were the defendant now to pay the plaintiff the amount which he claims, that payment would not divest the State of her title to the property if she, acquired any. The defendant would then have lost his property, and besides, the amount claimed as taxes due on it, and for which it was apparently confiscated for the, benefit of the State.
The judgment appealed from should be affirmed.
Poc’he, J. concurs in this opinion.