
    Thomas Banks vs. Matthews Bingham.
    The redemption money of lands struck off to the school commissioners, for the non-payment of the county taxes, must be paid to the county trustee for the use of the county.
    A motion made against the sheriff for the non-payment of county taxes, must be in the name of the chairman of the county court.
    This was a motion made in the county court of Carroll, by the defendant in error, as trustee of the said county of Carroll, against the plaintiff in error, who was sheriff and tax collector for said county. The county court rendered a judgment against him for $49,42 cents, and by consent of the parties, an appeal in the nature of a writ of error was prosecuted to this court. The facts upon which the motion was founded, were as follows:
    At the sales of lands for the taxes of 1829, on the first Monday of November, 1830, and the succeeding day, several tracts of land were duly cried off, and sold to the trustees and commissioners of the common schools,, &c. for said county, in conformity with the provisions of an act of assembly, passed 4th January, 1830. Acts, 1829, ch. 54. Among other tracts thus sold, was one in the name of Peter J. Voorhies, and another in the name of Hugh B. Porter. The county taxes on these two tracts amounted to $49 42 cents. These two tracts have, since said sale, been redeemed, and the redemption money paid to the plaintiff in error.
    
      Gillespie and Jennings, for plaintiff in error.
    The principal question in this case is, as to the true construction of the act of 1829, chapter 54, referred to in the record, entitled “an act for the benefit of common schools.” By the first section of this act, the common school commissioners are placed upon the footing of other purchasers, with this difference, that they “purchase without money and without price,” there being no express provision in regard to the redemption money, in the act (so far as the amount of the taxes and 50 per cent is concerned,) it follows as a legitimate and necessary inference from their condition of purchasers, that in the event of a redemption, like other purchasers, they will be entitled to the redemption money; that is, to that portion of it about which the act-makes no express provision.
    The second and last section of the act in question provides, that if the lands bid off to the trustees be not redeemed, the officers shall lose their fees, (their services shall be deemed to be ex officio,) provided, (says the act,) “nothing herein contained shall be so construed, as to prevent said officers from receiving their fees, where lands sold to said trustees shall be redeemed in the time prescribed by law.” The only portion of the redemption money, then, about which the act makes any express provision, is that which consists of the fees of the officers, and they do that in a manner and in terms which strongly confirm the view we have taken 0f the intention of the first section, if any confirmation of that view were necessary.
    But suppose the defendant in error were entitled to the money in question, has he brought his suit correctly? The 5th section of the act of 1827, ch. 49, entitled “an act to amend and reduce into one the several acts concerning the county revenue,” provides, that the mode of proceeding against sheriffs and collectors for failing to pay over county taxes by them collected, shall be by motion in the name of the chairman of the county court, as plaintiff, and that the attorney general shall make and prosecute such motions. This suit has not been so commenced nor prosecuted, but by the county trustee in his own name. The last section of the act just referred to, repeals all laws coming within its purview and meaning. This act is to be found in Haywood and Cobbs’ Revisal, 357, 362.
    
      Brown and Bradford, for defendants.
    The first question made in this cause is, whether said taxes belong to the school commissioners, or should be paid to the county trustee.
    The primary object of the legislature in passing the act of 1830, ch. 54, was to force owners of lands to pay their taxes, and not to turn any part of the county taxes into the common school fund. They must have intended that when lands bid off to the common school commissioners are redeemed, that the redemption money should go into the county treasury as other taxes. This seems to be a fair view of the objects of the legislature. The reason why the redemption money on tax sales in ordinary cases belongs to the purchaser, is because he has advanced said money and paid the taxes due to government. The reason does not apply to the common school commissioners under the act of 1830, ch. 54. They have advanced no money and the taxes to government are not paid. Besides, the language of the act does not justify the construction attempted to he put on it hy the plaintiff in error. The act does not put the common school commissioners on the same footing with other purchasers generally, hut says, they shall have all the rights, interest and benefits that other purchasers at tax sales could have in the title, thereby giving them no interest in the redemption money, hut only in the title of the land, should it not he redeemed in the time prescribed hy law.-
    2. It is contended that this motion was improperly made in the name of the trustee, hut should have been made in the name of the chairman of the county, in pursuance of the act of 1827, ch. 49, sec. 5.
    Answer — This motion is properly made under the acts of 1799, ch. 7, sec. 1, and 1803, ch. 18, sec. 4. The last named statute provides, that the trustee may make * motion against the sheriff, coroner or collector, for a - gment for “county money of every description what- - or, that comes into his or their hands.” This stat-sim clearly provides for this case, provided the court • : ; of opinion that the money in question was county ney, and due to the county trustee at the time of motion.
    The statute of 1827, ch. 49, sec. 5, does not apply . -this case. This statute directs that a motion shall be made hy the attorney general, in the name of the chairman of the county court, where, in the language of the section of the act referred to, “the sheriff or collector of any county in this state, shall neglect, fail or refuse to pay over the taxes hy him collected, on or within the time limited hy this act, as. in manner hereby directed.” The money in this case, for which this motion was made, was not received hy the collector under the provisions of that act, nor was he to pay it over ⅛ the manner directed by that act; hut said money in the collector’s hands, if due to the county of Carroll at all, was due under the provisions and construction of the act of 1830, ch. 54, and could only he collected by the trustee under the general provisions of the act of 1803, chapter 18, section 4. Had this motion been made in the name of the chairman of the county court, it would have been a conclusive answer to it to say, that the provisions of the act of 1827, requiring a motion in his name, did not embrace this case. But suppose this case did fall within the directory provisions of the act of 1827, the court, on motion of the attorney general, are directed to enter up judgment in ihe name of the chairman of the county court. The error, then, of the court below in this case would he, in the entering up of the judgment, which, on reversal, could be corrected in this court. Facts enough appear to authorize a judgment, and if the judgment below is wrong, this court will correct it. But defendant in error relies with confidence on the construction of the statutes, above contended for. The defendant in error, therefore, asks this court to' confirm the judgment of the court below.
   Catron, Ch. J.

delivered the opinion of the court.

1. The court is of opinion, that the act of 1829, ch. 54, never contemplated that any part of the revenue should go into the hands of the common school trustees. The object was to vest in them lands that might be forfeited to the state for non-payment of the taxes. In this respect the act makes a new provision; previous to its passage, if there were no individual bidders, the state took no title.

2. The motion was made in the name of the trustee; whereas it is insisted, it ought to have been made in the name of the chairman of the county court. By the act of 1803, ch. 18, the trustee was the proper person to make the motion; hut the act of 1827, ch. 49, has changed it. By the second section, the collector of the county taxes is to give bond and security payable to the chairman of the county court and his successors, in double the amount of the taxes due, conditioned for the collection and payment to the trustee of the county, of all taxes by him collected. This bond (section 3,) is to be made part of the record, as is the tax list by virtue of which the collection is made. On or before the first court in the succeeding year, the collector is to pay the county taxes into the hands of the trustee; and by the 5th section, if he fail or refuse to pay within the time limited by the act, it is the duty of the trustee to furnish a copy of the record, and such information as is in his power and possession; and at the second court in the year, the attorney general for the district, shall move for judgment against the collector and his securities; and thereupon the court shall enter up judgment in the name of the chairman of the county court, for the taxes in his hands, and execution shall issue against the sheriff or collector and his securities. The proceeding is of course grounded on the bond; for by the force of this alone, the sureties are responsible; the bond being in the name of the chairman, and no authority for him to assign, the proceeding must be in his name. The third, fourth, and concluding section of the act of 1827, repeal all laws coming within its purview; of course the act of 1803, in this respegft. The judgment must be reversed, and the plain-tiffin error go hence, &c.

Judgment reversed.  