ON REHEARING
The improvement districts sold all the merchantable timber to Moore. The contract of sale required him to surrender one-fifth of the acreage each year, or as consideration for holding an additional year, to pay the state and county taxes due on each one-fifth so held over. With consent of the districts, Moore sold the oak timber to Bailey. Bailey received from the districts a release of all claims for any part of the purchase money remaining unpaid by Moore as against the oak timber. Thereafter the districts could enforce payment of unpaid purchase money due by Moore only against the timber other than oak. But the oak had been purchased by Bailey ‘ ‘. . . with all the rights and privileges granted unto the said G. D. Moore in the original contract of sale and purchase.”
What were these rights and privileges? They included the right to cut and remove the timber within five years — one-fifth each year — and the land from which such one-fifth was annually cut should be surrendered to the districts. Additional cutting time was provided for, but this extension could be secured only by paying “the state and county taxes due” on the lands which otherwise would have revertéd. No extensions beyond these times were given Bailey. The districts had only released, as against the oak timber, the right to enforce payment of the balance due on purchase price of all the timber. While the oak was fully paid for, the right to cut and remove it was referable to Moore’s contract.
The contract to pay state and county taxes “due” upon election of the purchaser to hold the .several one-fifths for an additional year was entered into under the mistaken belief that the districts would be required to pay such taxes, or that they would be cumulative charges against purchasers of the fee if and when the districts sold. Hence, the contract required the purchaser to pay the “state and county taxes due” upon any land which might have been, but which through election had not been, surrendered.
■ It is true the law provides that upon sale of timber it shall he classed as personal property and shall be subject to taxation as such.8 'But it does not appear that .the timber was so assessed. When it shall be assesed the purchasers (because they are owners) must pay such taxes. But they must pay something more if they elect not to surrender a fifth of the land each year, as the .original contract of sále provides.
It is also true, as appellees insist, that state .and county taxes are not payable upon lands owned by the improvement districts which they acquired in consequence of sales for delinquent taxes. This is true because the districts hold the lands in their governmental capacities, and while so owned they are not subject to state and county taxes; nor are such taxes cumulative and chargeable to subsequent purchasers.
In view of the mutual mistakes of the parties as to the law governing payment of the state and county taxes, there was a failure of consideration for that part of the contract relating to extension of time for cutting the timber. But the contract is severable. The timber might have been cut one-fifth each year, without time grants. While the districts, had they not insisted upon collection of the tax equivalents, could not have been compelled to extend the time, they may not deny the privilege, in view of their insistence that the money be paid to them. Nor can the timber purchasers be required to make the payments. In the alternative, however, they should have the right to make the tender from time to time, and if they elect so to do, the districts will be required to accept.
There may be practical difficulties in determining what proportions of the tax equivalents should be paid by Bailey, who owns only the oak timber, and what parts should be paid by Moore, who owns the remainder; but this is a problem they must adjust.
The decree is reversed and the cause remanded, with directions to allow Moore and Bailey, or either of them, six months from the date of this opinion in which' to pay the tax equivalents on so much of the land as was subject to the holdover privilege of the contract. It is so ordered.
Pope’s Digest, § 13599.