
    *Gates & Clark v. Lawson & als.
    July Term, 1879,
    Wytheville.
    Absent, Moncure, P.
    Tax Titles. — By deed dated the 16th of February. 1864, T sold and conveyed to R a tract of land in Patrick county; but the deed was not recorded in that county, until 1874, thoug-h R paid the taxes on the land from 1866 inclusive. This land, standing-on the land-books of the county in the name of T, was returned as delinquent for the tax of 1865; and in 1873 was sold as delinquent land and purchased by G, to whom the clerk afterwards conveyed it. In ejectment by G against R to recover the land — Held: Under the statute. Code of 1873, ch. 38, § 26, a purchaser at a sale of land delinquent for taxes only acquires such estate as was vested in the person assessed with the taxes at the commencement of the year for which the said taxes were assessed; and as T had in 1864 sold and conveyed the land to R, T had no estate in the land in January, 1865, and G took no title to the land under his purchase and the deed to him.
    This was an action of ejectment.in the circuit court of Patrick county, brought by John W. Gates and Robert M. Clark against M. T. Lawson, the tenant in possession, to recover a tract of land of twelve hundred and eighty acres, which had .been sold by the treasurer of the county in 1873, for the delinquent taxes of 1865, amounting to $16.01, and purchased by the plaintiff. This land ha4 been returned delinquent as the land of Robert A. Terry, who, on the 16th of Eebruary, 1864, had sold and conveyed it to Wyndham Robertson and Ben. K. Buchanan at the price of $29,000; but the deed was not recorded in Patrick county until 1847. They had, however, regularly paid the taxes of 1866 and subsequently. They entered themselves as defendants in the cause. *The case was submitted to .the decision of the court, and a judgment was rendered in favor of the defendants: and the plaintiffs thereupon applied to a judge of this court for a writ of error and supersedeas; which was allowed. The ground on which this court decided the- case is stated in the opinion.
    A. M. Lybroolc, for the appellants.
    C. F. Trigg, for the appellees.
   CHRISTIAN, J.,

delivered the opinion of the court.

This is a writ of error to a judgment of the circuit court of Patrick county. The action was ejectment brought by the plaintiffs in, error to recover a tract of land containing 1,280 acres purchased by them at a sale made by the treasurer of said county, for taxes assessed and unpaid upon said land.

On the trial a jury was waived and the matter of both law and fact were submitted to the court.

There was a judgment for the defendants. To this judgment a writ of error was awarded by one of the judges of this court.

The court is of opinion, that there is no error in the judgment of the circuit court.

The fact disclosed by the record so far as they are material to be noticed, in our view of the case, are as follows; Robert A. Terry on the 16th of February, 1864, and before that time, was the fee simple owner of the tract of land in controversy. His title to the land is nowhere questioned. On that day he conveyed the same by deed (through John Staples, his attorney in fact) to Wyndham Robertson and Benjamin K. Buchannan for the consideration expressed in said deed of twenty-nine thousand dollars.

*On the same day the deed was acknowledged before a notary public by Robert A. Terry, the grantor, and delivered to the grantees; but, for some reason (owing probably at first to the confusion of the times consequent upon the civil war, and military government which succeeded, and afterwards through forgetfulness and inadvertence) it was not recorded in the county of Patrick until the 16th July, 1874.

On the land-books for the year 1865, this tract of land stood charged to Robert A. Terry, and assessed at the value of $5,132; the state tax upon which assessed value was $10.26; which sum, together with the county levies of that year, made up the sum of $16.01, the amount, of unpaid taxes for which said land was returned delinquent.

Whether the land was afterwards transferred on the land books does not distinctly appear. But it does appear in the record that the taxes on said land, front the year 1866 to year 1874 inclusive, were paid by Wyndham Robertson, one of the defendants in error, or his agent.

The unpaid tax, therefore, for which the land was delinquent was that for the year 1865, when it stood charged on the land-books to Robert A. Terry, and amounted to the sum of $16.01.

Proceedings were taken under the statute “concerning the sale of delinquent lands,” and the land in controversy was sold at public auction by the treasurer of Patrick county. The plaintiffs in error, Gates and Clark, became the purchasers at the price of $16.01, the amount for which said land was delinquent. A deed was made by the clerk of the county court conveying the land to the purchasers.

Exceptions are taken in the record, and relied upon in argument here, as to the irregularity of these proceedings. Upon these questions the court does not deem it necessary to express any opinion. Considering that in this case the proceedings were all regular, and in strict conformity *with the statute, yet the question we have to determine is, did the purchaser acquire such title by his purchase, and deed from the clerk, as would prevail against the title of the defendants. The solution of this question depends upon the true construction to be given to one of the statutes providing for “the sale of delinquent lands.” The 26lh section of ch. 38, of Code of 1873, is as follows: “Where the purchaser of any real estate so sold, his heirs or assigns, shall have obtained a deed therefor according to the six preceding sections, and within six months from the date of such deed, shall have caused the same to be recorded in the court of the county or corporation in which such real estate shall lie, such estate shall stand vested in the grantee, in such deed, as it was vested in the party assessed with the taxes (on account whereof the sale was made), at the commencement of the year for which the said taxes were assessed, notwithstanding any irregularity in the proceedings, under which the said grantee claims title, unless such, irregularity appear on the face of the proceedings.”

Now it is clear that under this section, Terry being “the party assessed with the taxes (on account whereof the sale was made) at the commencement of the year (to wit: the year 1865) for which the taxes were assessed,” Gates and Clark took, under their purchase at the treasurer’s sale, only such title as Terry had on the 1st day of January, 1865. On that day Terry had no title. He had parted with his title nearly twelve months before; for on the 16th day of February, 1864, he had, for a valuable consideration, conveyed theland to Robertson and Buchannan.

Upon familiar and well established common law principles, a plaintiff in ejectment can only recover on the strength of his own title. If he has no title, whatever may be the defect of the title of the defendant in possession, he must go out of court. In the case before us, the plaintiffs (standing in the shoes of Terry) were without *title, while the defends nts had a perfect title. It is plain, therefore, that a judgment for the defendants was the proper judgment to be entered by the circuit court.

It is insisted, however, by the learned counsel for the appellants, that because the deed from Terry to Robertson and Buchanan was not recorded in the county of Patrick before the tax sale and purchase by the plaintiffs in error, they acquired no title as against the commonwealth; that the state had a lien upon the land for the taxes, and had a right to enforce that lien by a sale of the land and a conveyance of the same to the purchasers; and that the title thus conveyed would override a title, though perfect, if unrecorded in the county where the delinquent land lay.

Now it is at least questionable whether the registration acts apply to the state, in a case like the present; whether in the meaning of those acts the state, having a lien on land, can be regarded as a creditor, or purchaser for value. However this may be, and of thF it is not necessary to express an opinion, it is certain that the statute above referred to fixes the right of the parties, and declares what title a purchaser shall take in lands sold for delinquent taxes.

Whatever may be said about the policy and power of the state to preserve and enforce its, lien for taxes against all claimants, and to give a good title against all alienees, the only question is, how has the state exercised this power? She has declared through her legislature, in plain and unmistakable terms, admitting of but' one interpretation, that the only title which she guarantees to purchasers at sales made by her agents of lands delinquent for taxes is such title “as was vested m the party assessed with the taxes at the commencement of the year for which the said taxes were assessed.” If such party at that time had no title, then the purchaser at the tax sale acquires none. If such statute be inefficient, it is for the legislature to amend it, and make it more efficient. This court can only declare *what the law is, not what it ought to be. All we can sav is, “Ita est scripts lex.”

The court is therefore of opinion that there is no error in the judgment of the circuit court of Patrick county, and that the same be affirmed.

Judgment affirmed.  