¶1There is no defect in the averment of complainants of' their ownership of the lands in controversy. They allege their seizin and possession, and that they have a direct chain of title from the government.
¶2The defects in the tax title are abundantly shown. It is sufficient here to note two defects. The lands were resident property, but were put down with non-resident lands on the roll, and they were grouped and jointly assessed with lands owned by the defendant.
¶3It was not necessary for complainants to make any formal tender to defendant before filing their bill. No statute requires it in such a case; but complainants allege an offer to pay defendant twenty-five dollars for a release, which is at least as much as in equity could have been required of them, as it was much more than the sum for which the lands were sold.
¶4The objection that complainants did not offer to pay the expense of conveyance is not well taken. It might, perhaps, be a reason for withholding costs from them if the defendant had not totally denied their right, but under such a denial he is not in position to insist upon such a point.
¶5*421We think the court erred in dismissing the bill, and the decree must be reversed, with costs, and the cause remanded, with directions that the demurrer should be overruled, and the defendant have leave to answer.