#### JAMES H. MERRIMON and E. STERNBERGER v. A. H. LYMAN et al.

(Decided April 11, 1899).

Tax Title — Redemption.

Where land has been sold for taxes and bid off by the County Commissioners, but is redeemed for the owners, by payment of taxes, interest and costs, although some time after the time limited by law, a subsequent order to the tax collector to mate a deed to another party is invalid, and the deed is of no effect.

Civil ActioN for recovery of land, tried before Rotee, J., ■ at July Special Term, 1898, of BuNcombe Superior Court.

Tbe plaintiffs claimed tbe land known as tbe Riverside Parle, in Asheville, by purchase and deed from C. E. Graham, trustee of Natt Atkinson and P. F. Patton, at sale made August 10, 1895. Tbe defendants claimed under tax deed of J. H. Weaver, Tax Collector of Buncombe County, dated April 17, 1895. Tbe tax sale was for tbe taxes of 1892 and was made by D. L. Reynolds, Tax Collector, on 22d May, 1893, and tbe land was bid off by tbe county. On 12th March, 1895, Graham, tbe trustee, paid Weaver, tbe Tax Collector, tbe taxes in full, due upon tbe land for 1892, and Weaver entered tbe fact of redemption upon bis “Redemption Book.”

On April 1, 1895, tbe County Commissioners passed this 'order: “Ordered that J. H. Weaver, Tax Collector, be instructed to transfer to A. H. & 0. E. Lyman all tbe tax sales for 1892 and 1893, making deeds for 1892 sales and certificates for 1893 — tbe certificates to be paid for now; tbe deeds to be paid for by June 1, 1895.”

*435It was in pursuance of this order that Weaver made the deed to the defendants of April 17, 1895. There was considerable Contention and evidence pro and con whether this deed had a seal to it at the time of execution. In response to an issue the jury found it was affixed in the fall of 1896. The case, however, turned upon the effect of the tardy payment of the taxes of 1892 by Graham, trustee, in 1895. The defendants contended that such payment was made without authority oh the part of Weaver, then Tax Collector, to receive the taxes, interest and costs, in redemption of the property.

The fifth issue was: “Are plaintiffs owners of land sued for and described in complaint ?” His Honor instructed' the jury that if they believed all the evidence, to answer this issue “Yes,” which they did.

Defendants excepted. Judgment for palintiffs. Appeal by defendants.

Messrs. Davidson & Jones, and Shepherd & Bnsbee, for appellants.

Messrs. Merrimon & Merrimon and W. B. Gwyn, for plaintiffs.

MONTGOMERY, J.

This action was brought for the recovery of the possession of certain real estate situated in the City of Asheville, North Carolina, the right of the plaintiffs to recover being resisted by the defendants, who claim the property under a certain deed executed by J. II. Weaver, once a tax collector of Buncombe County, the deed bearing date the 17th of April, 1895.

In mating out their title to the property the plaintiffs introduced as one of the evidences a deed of trust dated May 30, 1892,from Natt Atkinson and wifeand B. E. Patton and wife to C. E. Graham. One of the exceptions of the defendants *436is to tbe ruling of his Honor in receiving this deed in evidence. The exception is that the deed was not properly registered because the probate failed to direct its registration. A copy of the deed is not in the case on appeal nor is the language of the probate set out so that we can see whether the same embraced an order for registration in sufficient form. The exception is not in such a shape as that we can take notice of it. However, there is no reference to the exception in the brief of the defendant and it may be presumed that it was abandoned. The deed was in fact registered, and there is nothing before us upon which we could say that it was registered improperly. That was the only objection made to the plaintiff’s evidences of title; and unless the deed from the Tax Collector to the defendant is such a one as to convey the property to the defendant the plaintiffs have made out their title and are entitled to the possession of the property.

It appeared in the case that the property was sold by D. L. Reynolds in 1893, and bid off by the County Commissioners of Buncombe; that some time after the time in which the law allows the redemption of real estate which has been sold for taxes, by the owners, the Commissioners ordered Weaver to make a deed for the property, and that the same was done, the deed bearing date the 17th of April, 1895. The jury, however, found in response to the 4th issue, that the property had been redeemed at the time the defendant took his deed for the same.

The defendants contended that the instructions of his Honor upon the 4th issue were erroneous, alleging that there was no evidence tending to show that Weaver, the Tax Collector, had any authority from the Commissioners to receive from the plaintiffs the taxes, interest and costs in redemption of the property. The evidence was not as direct and as clear as it might have been on the point, but we are of the opinion *437that it was sufficient to be submitted to the jury. Weaver himself testified that he did not have the tax-books for 1892 in his hands when he received from the plaintiffs the taxes of 1892, but he said he received redemption money, and throughout his testimony he constantly referred to the redemption book and to his receiving money upon it.

The property having been redeemed by the plaintiffs before the order of the County Commissioners was made directing the Tax Collector, Weaver, to make a deed to the property to the defendants (even if the order was of any validity) the deed was of no effect, and his Honor’s instruction to the jury to answer the fifth issue, “Are the plaintiffs owners of the 'land sued for and described in the complaint “Yes,” if they believed all the evidence was correct.

There was no error. Affirmed.