¶1dissenting.
¶2• So much of the opinion of the court as intimates a decision sustaining the validity of the tax tille set up by complainants in the court below, I dissent from, for the reasons, first: The assessment of 1851, under which the sale was made, comprehended the taxes supposed to be due for the years 1831 to 1836 inclusive, in all which years the territorial government existed» and I find no authority, either in the State constitution or in the acts of the legislature, directing or empowering the State authorities to assess or collect the unpaid territorial tax, county or State: and a sale bad for a part is so for the whole, as is well established.
¶3Again: the law requires the sheriff or assessor to assess the lands as “ best he can,” and the presumption is, until the contrary is proven, that in making an assessment, he has done his duty. But if, as in this case, he sees proper to stultify himself by testifying in the case, that he made no assessment at all himself, but copied into his own book an assessment madehiy another person, having no official connection with his office and having no legal right to make an assessment, the presumption is destroyed, and the proposition established that he did not assess the lands “as best he could” — hence not as the law required him; and the act becomes void, and lays no foundation for title.
¶4But it is proven that Maddux repudiated the lease taken from Miller, the original owner; for by agreement with his co-tenants, Williams and Etter, he erected and used a house upon the premises, and therefore is estopped from disputing or calling in question their title in any way, whether'it be void or otherwise.