
    In Bank.
    Dec. Term, 1846.
    Eli W. Gwynne vs. Christopher Niswanger.
    in the Virginia Military District, where lands are entered upon the duplicate for taxation before the patent has issued, and are sold for the nonpayment.of the tax, the purchaser takes the entire interest of the former owner; and if such owner subsequently receives a patent, he will be treated as a trustee for the purchaser at the tax sale, and be compelled to convey the legal title to such purchaser; provided the proceedings are regular, and in conformity with the law.
    This Case comes into the Supreme Court, by appeal, and was reserved in the County of Madison.
    It is a suit in Chancery, depending upon bill and demurrer. The case was presented to the Court of Common Pleas of Madison connty, at the September term, 1845. That Court overruled the demurrer, and entered a decree for the complainant. From this decree the defendant appealed to this Court.
    The bill states that, on or about the 22d day of June, 1810, David Ross, as assignee, in trust for himself and others, entered survey No. 6780, of 640 acres, in the Virginia Military District; that it was surveyed in April, 1816, and lies in Madison county; that on or about the first day of August, 1828, the Auditor of Madison county prepared, in due form, a list of lands in" said county, on which the tax was due and unpaid, with the years for which the same appeared to be due and unpaid, prior to 1820, as required by, and in pursuance of the third section of the act, entitled “an act for the remission of penalties and for the sale of land for taxes,” passed January 29th, 1827, upon which list the above survey was duly charged; that said list was duly sent by said County Auditor to the Auditor of State; that the Auditor of State received it, compared it with the duplicates and other documents in his office, and transmitted duly to the Auditor of Madison county a correct listj duly certified under his official seal, of all lands in said county on which the damages, interest and penalty were due and unpaid, as directed and required, and in manner pointed out ■ by the fourth section of said act, and on said list 'the above, tract was duly listed ; that on this list the above tract was charged with the damages, taxes and interest, which were due and unpaid, prior to 1820, to wit, from the. year 1811 to the commencement of the year 1820, and also the taxesj interest and penalties which accrued on said tract, from the commencement of the, year 1820 to the. year 1828, amounting, in all,' to $278.99.1, which were not' paid, &c.; that the Auditor of Madison county, having' neglected to sell said lands on the second Monday of December, . 1828, as required b.y said law, did, on the 175th of October,-1829,'cause these.and other lands, to be advertised for sale; on the second Monday of December, 1829, in pursuance of an act; supplementary to the -abo've named act, passed February 11th, 1829; that, at such sale,'the above tract was sold to Lyne Starling, who subsequently conveyed to complainant, in 1832, by deed of-quit claith; that Niswanger, as assignee of the heirs of Ross, obtained a patent for said survey, in 1838, brought an action of ejectment, arid recovered by a decision of this Court, in December,'1844; that Niswanger .is about to sue out á writ, of possession, &c.,and prays an injunction; a decree that he convey to the complainant, and for general relief. •' - '
    To this bill the respondent demurs generally.
    
      J. W. Andrews, for .Complainant.
    
      Gilbert fy Baldwin, for Defendant.
    No arguments were furnished’to the Reporter.-
   Hitchcock, J.'

Two questions- are presented, iii this case, for the consideration of the Court; first, whether, a Court of Equity, acting within i.ts ordinary powers, can compel the legal owner of land, to bonvey the same to a'purchaser', a't tax sale, the owner; at the time of .the sale, having no other than an' equitable interest, but,haying, subsequent to the' sálej acquiréd' the legal title; and- second, -if the Court has-such power, is the case made in the complainant’s bill such as to justify the exercise'of it? .

Here it may be proper to remark, that questions of this nature can scarcely arise, except where, at 'the time of sale', legal title is, as it whs in this case, in the United States. Where, at the time of sale, the legal title is in an individual, that title passés; and it, is not. material that ¿he land was ' taxed in the Wrong name, or even as belonging to unknown owners. In such case, the .proceeding being regular, the title passes; and there is nothing unjust in this. It is' the duty of the.- owner of land to see that it is properly listed, and it is, also His duty to pay the taxes. If he'neglect this duty, the State cannot'be deprived of its lien .upon the land, nor can the'purchaser at the’ tax sale bé deprived of his right by a mistake on the part of the officers of,the government, as to the namé-of the person, to whom the tax is charged. But where’ the legal title is in the United States, it'has. been held that such, title does not pass. It was-so decided in the case of. Stuart’s Lessee v. Parrish, 6 Ohio Rep. 204; and in the case of Niswanger v. Gwynne, 13 Ohio Rep. 79;

Counsel for defendant insist, that the title acquired by a-tax-purchaser impurely legal; .and unless a-legal 'title is-acquired by ' the 'purchase,-nothing is.-acquiredl 'I am aware that it is generally understood - that the.-interest acquired by purchasers’,- ,at: sheriffs’ as well aslax sales, is purely legal,-.and that such' purf ; chasers cannot be-aided-by a Court of Chancery. But if'there • is' áriy -thing in -qur 'peculiar .system...which requires of us. -to adopt'a different rule, we . ought'not t'o'hesitate in adopting it;.''■ All lands in the State' are subject to taxation as a general rule, except such as’áre owned by the United States; and the lands, the legal title to which is in the’United States, may be taxed5 when they become in equity the property Of, individuals. • Lands -.commonly called: .Congress.1 lands, ‘could n-dt.'.bq.-’táxed' until- five 'years .after; they- had been, sold ';• but'’.wheff.súeh,Íahd¡s'.' were’sold on credit, the "State- wa's/not-bound.''to''wait five years.'from' the tinie the patent- .issued,-but .only.five' years' ffomy'the' time the lands were appropriated by entry in the register’s office. The title to the lands in the Virginia Military District was in the United States, but were held in trust for those for whose benefit they were appropriated. These lands have always been held to be subject to taxation from, the time of their appropriation, by entry. The right thus to tax them has never been questioned by the United States. They have been taxed and sold under such circumstances, but upon ;the hypothesis of defendant’s counsel the purchaser acquires nothing. This Court, however, has held otherwise. In the case of Stuart v. Parrish, the Court do not say, it is true, in express words, that the purchaser acquires an equitable title, but they do say that he acquires nothing more than an equity. But in the case of Wallace v. Seymour Renick, 7 Ohio Rep. 156, it is expressly decided, that by a sale of land for taxes in the Virginia Military District, surveyed but not patented, the whole interest passes to the purchaser, and no right remains in the original holder. We believe this to be a sound principle; one which it is necessary to sustain and carry out. And we have no doubt that, under such circumstances, upon proof being made 'at the proper department, a patent would be issued to the tax purchaser. It ought to be done, and,we believe it would be done. In the Same case, the Court further decide, that if such former holder, to defeat the sale for taxes, is permitted to withdraw tlie entry'and survey, and make a new one, upon which he obtains a patent, although such patent is not void, yet the patentee holds the title subject to the rights that may have been acquired by the purchaser for taxes.

To apply this principle to the case under consideration. The land in controversy had been entered in 1811, and surveyed in 1816, in the name of David Ross, in trust for himself and others. It was entered upon the duplicate for taxation, in the year 1811, by a pertinent description; but the taxes were not paid. In December, 1829, the taxes having remained unpaid for eighteen years, the land Was sold. If this sale was regular, then all the interest of Ross, the former holder, was vested in Starling the purchaser; and if, after the sale, a patent had been issued to Ross, he would have taken it subject to the rights of Starling, in trust for him. Niswanger having obtained an assignment from Ross after the sale, and having taken out a patent in his own name, takes the naked legal title in trust for the purchaser at tax sale. He stands in a similar relation to the purchaser for taxes, as does the patentee under a prior entry to him who has the older entry and survey. He is a there trustee, and a court of equity may, with propriety, compel him as a trustee to convey to the cestui que trust. It was upon this principle that the Court, in the case of Niswanger v. Gwynne, decided that the remedy of the defendant 'Gwynne, if the proceedings in the tax sale Were regular, was in Chancery.

The next question is, whether the case made in the bill is such as to show that the proceedings at the tax sale were regular. We have carefully compared the statements in the bill with the requisitions of the statute, and have no'hesitation in saying, that if the statements of the bill are true, and they are admitted by the.demurrer, the complainant is entitled to relief, The demurrer is, therefore, overruled. But if the defendant would contest the facts stated, he can have leave to answer,  