
    CAMPBELL vs. HEARD, Register.
    The lands and lots subject to entry át the office of the Register of Lands, under the 29th section of the act of February 27, 1843, to provide for the sale of lands for taxes, (session acts of 1842, ’43, p. 142,) are the lands and lots embraced within the first clause of the 1st section of said act, viz., lands and lots sold or forfeited to the state for taxes, and upon which the taxes have been due and unpaid for six years. Therefore, where the petitioner applied to the register to enter certain lands returned delinquent for the years 1837, ’38, and it appeared that the lands were not returned until the 13th of December, 1837, they were not subject to entry under said 29th section, the six years not having elapsed at the time the lands were offered for sale. — See 4th section of the act ofFebruary 6,1837, concerning “Revenue Session Acts of 1836,’37,” p. 132.
    
      PETITION FOR A MANDAMUS.
    
      In the Supreme Court.
    
   Tompkins, J.,

delivered the opinion of the Court.

The petitioner states that he applied to the register to enter 640 acres of land,' assessed in the name of John Rourke, for the State and county taxes due thereon for the years 1837 and 1838, and returned delinquent for these years, and which had been offered for sale on the first Monday in September, 1843, by the sheriff of St. Charles county, and was returned not sold, for want of bidders.

This application is made under the 29th section of an act approved 27th February, 1843, entitled, “An act to provide for the sale of lands for taxes.” The section is in the.se words, to. wit:—

Sec. 29: “ Whenever any lot or tract of land that has been sold to the State for taxes, or has been forfeited for’ taxes, shall have been offered for sale under this act, and shall have been returned by the sheriff unsold, such tract shall be liable to entry at the register’s office, by any person who will pay therefor all the taxes, interest, penalties and costs of every kind due thereon, and upon such payment the register shall execute, to the person making such payment, a deed for such lot or land, similar to the deed required by this act to be executed to purchasers at public sale.” — Session act, p. 142.

In order to learn what lot or tract of land sold to the State for taxes, or forfeited for taxes under this 29th section, we must refer to the 1st section of the same act, which is as follows, to wit:—

Sec. 1: “All lands and town lots which have been sold to the State for taxes, and lands and town lots which have been forfeited to the State for taxes, and upon which lands' or lots taxes have been due and unpaid for six years, shall, by the sheriffs of the counties in which such lands or town lots lie, be sold for cash in hand, at such time and place as is hereinafter provided; and so much of each and every tract of land, and so much of each and every town lot as will pay the taxes, interest,' and costs, due upon the same, which have been returned to the proper office as non-resident delinquent lands and lots, and’upon which the taxes for the year 1841 (or any prior year not embraced in the first clause of this section) shall be sold by the sheriffs of the counties in which such lands and lots lie, at such time as is provided in this act.”

In the first Clause of this section we find, that lands and town lots sold to the State for taxes, and also lands and town lots forfeited to the State for taxes, and on which lands and lots taxes have been due and unpaid for six years, whether those lands and town lots have been sold or forfeited, are to be sold for cash in hand at such time and- place as hereinafter to be provided.

In the second clause of the same section we find, that so much of each and every tract of land, and so much of each and every lot as will pay the taxes, interest, and costs due upon the same, and which have been returned to the proper office as non-resident delinquent lands and lots, and upon which the taxes for the year 1841 (or any year not embraced in the first clause of this section) shall, at the time of said sale, be due and owing, shall be sold by the sheriffs of the counties in which such lands and lots lie, &c.

The lands and lots which are liable to entry under the 29th section of the said act, “ To provide for the sale of lands for taxes,” are evidently the lands and lots mentioned in the first clause of the first section of this act, on which lands and lots taxes had been due and unpaid at the time of the sale (first Monday in September, 1843,) for six years. Some of these lands had been sold to the State, by the auditor, previously to the year 1835, and the remaining part of them had been forfeited under the 4th section of the act of 6th February, 1837, amendatory of an act to provide for levying and collecting the revenue. The register’s return shows that the land sought to be 'entered by the petitioner was not' returned by the collector of the proper county till the thirteenth day of December, 1837, and consequently it would not become forfeited to the State, under the provisions of the 4th section of the last-mentioned act, till the lapse of six years; for the land does not become forfeited to the State when it is struck off to the State, because the same 4th section gives the right of redeeming at any time within two years. (Act of 1837, p. 132.) This land, then, here sought to be entered, was not of that, description of lands directed to be sold for cash in hand, by the first clause of the 1st section of the act of 1843. (Pamphlet act, p. 138.) But it is of that description of lands set out in the second clause of the said first section, returned as non-resident delinquent lands, of which so much was directed to be sold as would pay the taxes, interest and costs due thereon. At the time the petitioner sought to enter this land, the six years had elapsed. But the 25th section of the act directs a different disposition to be made of it. By this section the register of lands is directed to make out a list of all lands and town lots which have been returned by the several collectors of the State to the proper office, for the non-payment of taxes for the year 1841, or any year prior, including all such as have been sold' to the State for taxes, and all such as have been forfeited to the State for taxes, and all such as have been returned for the non-payment of the taxes for the year 1841, or any year prior, but not yet forfeited. By the 26th section, the register is required, on or before the 10th day of August, 1843, and by the 28th section, he is further required, annually, after the year 1843, on or before the 10th day' of August in each year, to certify to the several sheriffs all the lands and town lots which shall be subject to sale for taxes that year; and also all such lands and town lots as shall have been returned unsold by the sheriffs, under the provisions of this act, and shall not have been redeemed.

Those lots mentioned in the 26th and 28th sections are made, by the 27th section, the sheriff’s authority to sell; and throughout this law, the distinction is kept up betwixt land sold or forfeited to the State, and land struck off to the State, or, as it is expreased in this act of 1843-, in the 4th section, land returned as unsold which it is declared shall continue the absolute property of the State. This absolute property of the State cannot be divested until, the taxes having remained six years unpaid, it has been offered for sale for cash in hand, and then, only, it becomes liable to entry under the 29th section of the act of 1843, above referred to-

The motion for a'peremptory mandamus is overruled.  