#### JOHN A. COLLINS and wife, MARY W. COLLINS, v. BETTIE J. BRYAN, HUGH B. BRYAN and S. G. WHITFIELD.

(Decided May 9, 1899).

Tax Sales — -Certificates—Titles—Act 1895, Ch. 119, Section 90.

The assignee of certificate of sale of land for taxes made to the County, acquires right of mortgagee, and must foreclose to complete his title. Wilcox v. Leach, 123 N. C., 74.

Civtx. AotioN for recovery of real estate, tried before Nor-wood, J., at May Term, 1898, of the Superior Court of Hali- . fax County.

*739The land in controversy had been sold for taxes, and plaintiffs claimed as assignees of the tax collector’s certificates of sale, given to the County, and deeds pursuant thereto.

The defendants claimed to be the owners of the land, which had been sold for taxes, and among other instructions prayed for the following special instructions:

“That as purchaser of said lands the County of Halifax was not entitled to a deed therefor, but was only entitled to. foreclose the certificates of sales, as in case of mortgage; that the plaintiffs as assignees of the County acquired no greater rights, and were not entitled to deeds for said lands.”

His Honor refused to give this instruction and defendant excepted.

Verdict and judgment for plaintiffs. Appeal by defendants.

Messrs. Gilliam <& Gilliam, for defendants (appellant).

Messrs. MacRae, Day & Bell and E. L. Travis, for plain-tifi's.

MONTGOMERY, J., delivers the opinion of the Court.

Cjlakk, J., dissented.

MoNtg-omery, J

This action was brought to recover the possession of the lands described in the complaint. The lands were sold by a tax collector of Halifax County in 1896 for taxes due upon the same. They were bid off at the sale for the County of Halifax, and certificates of the sale wero aftewards issued by the tax collector to the County. The certificates of sale were assigned by the Board of Commissioners of the County to John A. Collins and by him assigned to his wife, Mary W. Collins, the plaintiff in this action.

.Afterwards, on the 11th day of March, 1897, redemption not having been made by the owners of the lands, the tax *740collector made a deed in fee simple, conveying tbe same to tbe plaintiff, Mary W. Collins. Under tbis deed tbe plaintiffs claim title to tbe land.

Tbe defendant requested tbe Court to instruct tbe jury “That as purchaser of said lands tbe County of Halifax was not entitled to a deed therefor, but was only entitled to foreclose tbe certificates of sale as in case of mortgage; that tbe plaintiffs as assignees of tbe County acquired no greater rights, and were not entitled to deeds for said lands.” His Honor refused to give tbe instruction, and told tbe jury to answer tbe issue “Yes.”

The instruction ought to have been given. We will not enter upon a discussion of tbe matter here, but simply make reference to the case of Wilcox v. Leach, 123 N. C., 74, for tbe reasoning upon which tbis case is decided.

But we are of tbe opinion, however, that as it does not appear from tbe pleadings that tbe defendants have offered to pay to tbe plaintiffs tbe amount of tbe tax, interest and penalty, the defendants should be allowed a reasonable time within which to pay tbe same; and in default of such payment the plaintiff should be allowed in tbis action to proceed to foreclose tbe lien which be obtained by tbe purchase of tbe certificate from tbe County; and the plaintiff ought to be allowed their costs of action in tbe Court below, but not their costs of appeal. There was error in tbe matter pointed cut for which there must be a new trial.

Clark, J., dissented.