(concurring):
I concur in the decision made in this case, because I think that time denies relief to the plaintiff. So many years have passed since the purchase by Craig, and the means of information to the owners of the land that it was not in fact delinquent open to them. They could have learned the facts by the slightest diligence and care. In fact they did know of them long ago, as far back as 1879. The bill is predicated upon fraud. Equity does not allow a man to lie supine through a generation. I think, therefore, laches bars the bill, and also the statute of limitation. But I am not as yet ready to hold that when land is sold to the State for .delinquent taxes, even where the sale is void for irregularitiy. that its non-entry on the tax books after such sale will work its forfeiture. Section 23, chapter 29, Code, provides that, “Beal estate purchased for the state at a sale for taxes shall not be thereafter entered on the land books, but the auditor shall keep a register thereof.” Here is a positive prohibition against the entry of. such land on the tax books, and I cannot see how *478ihe owners can be remiss to the extent of the forfeiture of their land. They can redeem and reassess. We cannot say that if not re-entered for taxes the owners cheat the State out of her taxes ■as the land is hers, and she can sell it, and take all its proceeds/ 'if she chooses to deny them the excess over her taxes and interest and damages; and under the statutes as they are on redemption ■or sale she gets back all her taxes with twelve per cent, interest. She can lose nothing. The land is hers and not taxable. State v. McEldowney, 54 W. Va. 695; State v. Belcher, 53 Id. 359; Totten v. Nighbert, 41 Id. 800. In Sayers v. Berkhart, 85 Fed. 246, 29 C. C. A. 137, it was held that — "Where lands have been •purchased by the State at a tax sale they cannot be forfeited for non-entry on the land books for taxation, under the statute of West Virginia, which provides that lands so sold shall not there•after be entered for taxation unless redeemed.” But it is said in this case that where the tax deed is void for irregularity it is the duty of the clerk or assessor, on request of the owner to restore the land to the tax books, and that that owner must cause him to do so by request or mandamus. I cannot see clearly as yet that in the face of a statute, prohibiting the assessment of •such land a clerk or assessor can assume the function of passing upon the validity of the tax sale, generally a most intricate and delicate question of law, and thus exercise judicial functions. The sale is colorable, its validity colorable, and I cannot see how it can be overthrown by the clerk or assessor.