Appellee brought suit in the Monroe Chancery Court against appellant and the sheriff and collector of that county, and for cause of action alleged the following facts: That he was the owner of a certain forty-acre tract of land situated in that county, having obtained a deed therefor on February'27, 1890, from the State Land Commissioner, and that under this deed he had paid the taxes on said land for the years 1912, 1913, 1914, 1915, 1916 and 1917. That on January 6, 1919, the same being the first Monday in January, he applied to the collector to pay the State and county taxes then due, but the tax books were not at the time in the office of said collector, and that on Tuesday, January 7, 1919, he tendered to the collector the full amount of all taxes due on said land, but the tender was refused because the taxes upon said land had been paid by the appellant on the first day of January, 1919, and the taxes assessed against said lands were marked paid on the tax books. That said payment was in fraud of appellee’s right to pay taxes upon said land, and was done for the purpose of defeating appellee’s title to said land, and was made prior to the date fixed by law for the payment of taxes, and was a fraud upon the rights of appellee.
An answer was filed by appellant, in which he alleged his ownership of the land under a deed to him from the county clerk of that county based upon a sale for the taxes due thereon for the year 1901. It was further alleged in the answer that the deed to appellee from the Land Commissioner was void because it was based upon a sale for taxes which was void for a number of reasons there stated, and that appellee was seeking to perfect a void tax title by making seven consecutive payments of taxes.
A demurrer to this answer was sustained, whereupon, appellant declining to plead further, a decree was entered canceling the tax receipt issued on January 1, 1919, to appellant and directing the collector to accept the tender of the taxes made by appellee and to issue a receipt therefor, and from that decree this appeal has been prosecuted.
In support of the decree of the court below, appellee relies upon Act No. 115 of the Acts of 1911, page 361, which provides that “All taxes levied on real estate and personal property by the several county courts of the State, when assembled for the purpose of levying taxes, shall be deemed to be due and payable at any time from the first Monday in January to and including the 10th day of April in each year. * * * ” And it is argued that inasmuch as appellant paid these taxes before they were legally due and payable the payment should be treated as a nullity.
But appellee is in no position to raise this question. Under the allegations of the answer, the truth of which is confessed by the demurrer, appellant is the owner of the land, and, as such, the only person who had the legal right to pay the taxes upon issue joined on that question. While appellee is not a mere volunteer, he has no such interest in or title to the land as gives him a preferential right over the true owner to pay the taxes. This seventh payment which he seeks to make may have perfected his title, and his desire to pay was evidently prompted by a consideration of that fact. But this seventh payment had not been made, and the benefit of section 5057 of Kirby’s Digest did not inure because of the six payments which had been made, .as that statute inures to the benefit of him only who has paid taxes for seven consecutive years under color of title. The tax books had been marked paid, and no taxes for 1918 were charged against the land when the suit was brought. Under these circumstances it was not proper to adjudge that appellee had the right, as against appellant, to pay the taxes, and the court should not have lent its aid to appellee to make a payment of taxes which would have given him the benefit of the provisions of section 5057, which he would not otherwise have had.
The decree of the court below is therefore reversed, and the cause remanded, with directions to dismiss the complaint.