Preston v. Banks

Woods, J., delivered the opinion of the court. The finding by the court below of the facts as to the filing •of the assessment-roll in the year 1879 is correct. It is manifest, from all the evidence, that the assessor of taxes did not ■complete and certify and deliver to the clerk of the board of supervisors the land assessment-roll on or before the first Monday in July, 1879. By the settled course of decision in this state, sales, made under this roll, by which the respondent claims title to the lands in eonlroversy, are void, and conferred no title. The determination of this question, which lies on the threshhold of the litigation, cuts the case up by the roots, and renders unnecessary any consideration of any'of the other questions pressed upon our attention, save that only by which the appellant seeks re-imbursement of the sums paid out by him in the purchase of the land from the state and in payment of the taxes which have accrued since the date of said ■ sales. If the respondent had asserted this demand for affirmative relief, his contention in this particular would be easily maintainable. But, as the appellant prayed no relief by any cross-bill, contenting himself by stating, in a paragraph in his answer to the original bill, his desire for re-imbursement if the sales should be held void and his title invalid, the only [603] relief which could possibly be afforded him, in any view which, we might take of the powers of a court of equity in the case as made, would be that partial and problematical relief which would be afforded by a decree in favor of the appellee canceling the appellant’s tax-title to the lands in controversy, on condition of the re-imbursement of the sums expended by the appellant in his purchase from the state and for the after-accrued taxes. "We express no opinion as to the power of a court of equity to render such decree in the case as it stands; but, powerless to render that full relief to which the appellant is entitled, and by which a charge would be fixed upon the lands for his re-imbursement if he had prayed for affirmative relief by a proper cross-bill, justice to him will be more fully secured by affirming the decree'on the case presented to us, and remitting him to an independent proceeding for that full relief which is his right. Affirmed.