RIDOUT ET AL. V. KETCHUM.

Sale of land for taxes.

The east and west halves of lot No. 1 in the 2nd concession of the township of Mono, each containing 100 acres, were granted by the crown at different times, respectively in 1823 and 1829,—and to different persons. The taxes being in arrear, lots Nos. 1 and 2 were returned by the treasurer of the then Home District as in arrear for eight years' taxes, being £6 10s., (the taxes on 400 acres for eight years.) without distinguishing that one portion of these taxes was upon lot No. 2 and another portion upon lot No. 1, or upon the separate halves of No. 1. The lands were advertised by the treasurer as in arrear for taxes under the statute 59 Geo. III. ch. 7, the assessment law then in force, in these words: "Lots 1 and 2 in the 2nd concession, West Hurontario-street, in the township of Mono, £6 10s." In the writ issued to the sheriff for levying the taxes the sheriff was directed to levy in respect of lots 1 and 2 £6 10s., in the same language as that used in the advertisement.

The sheriff, at an adjourned sale under that writ, held on the 5th of January, 1842, put up the whole of lot No. 1 for the sum of £3 12s. 6d., being £3 58. the eight years arrears of taxes for 200 acres, and 7s. 6d. the expenses of the sale; and for that sum 25 acres, portion of the east half, were sold. Held, that under the facts the sale was void; for that as a portion of the east half had been sold for taxes, part whereof had accrued upon the west half, and was not chargeable on the east half, and there were no means of apportionment, it was void as to all.

EJECTMENT. Writ issued on the 6th of September for twenty-five acres of lot number one in the second concession west of Hurontario-street, in the township of Mono, being the south-east angle of said lot, seven chains fifty links, by thirtythree chains, thirty-two links.

At the trial it was admitted-First. That the east half of lot number one, in the second concession of Mono, west of Hurontario-street, was granted in fee to Seneca Ketchum on the 4th of July, 1823.

Second. That the west half of the same lot was granted in fee to Nathaniel Hewson, on the 15th of October, 1829, and were so returned by the Surveyor General, at or about those dates, to the treasurer of the Home District for assessment, and have never been owned by the same person.

Third. That the treasurer opened an account in his books for each half separately.

Fourth. That by such books the taxes appear as follows: Upon the east half from 1828 to 1835, inclusive, one pound twelve shillings and sixpence; and upon the west half from 1830 to 1837 inclusive, one pound twelve shillings and sixpence that the rates appear paid on said east half from 1835, but uncertain whether 1836 was included.

Fifth. That the treasurer returned lots numbers one and two in second concession, &c., as in arrear eight years, six pounds ten shilllngs, (which is the amount of taxes on four hundred acres of land for eight years,) without distinguishing one lot or part of a lot from another.

Sixth. That on the 7th of October, 1841, (quære, 1840) the clerk of the peace issued a warrant to the Home Sheriff, reciting that by the account rendered by the treasurer to the Court of Quarter Sessions, according to the statute 4 Geo. IV. (quære, 6 Geo. IV. ch. 7) it appeared that the assessment, or some part thereof, &c., had been allowed to remain in arrear beyond eight years upon the lots and parcels of land afterwards mentioned, and which lots or parcels of land stood respectively charged with the sums therein set forth; that is to say, in the township of Mono, west of the centre road, lot No. 1 in the 1st concession, 200 acres, three pounds and five shillings; lots Nos. 1 & 2, 2nd concession, 400 acres, six pounds and ten shillings. And the sheriff was commanded to levy the several sums of money therein mentioned by sale of such portions of the lands on which the said assessments were respectively charged as might be sufficient for that purpose, with fees, &c., duly observing the statute 4 Geo. IV. ch. 7 (quære, 6 Geo. IV.), and 7 W. IV. ch. 19, in respect of such sale, provided there was no distress upon the said lands respectively, from which the said several sums or either of them might be made; and if any such distress, then to levy the same by such distress, &c.-returnable the first Tuesday in July then next. It was admitted this writ issued in October, 1841 (quære, 1840).

Seventh. That the said lots Nos. one and two, &c., were advertised before the sale by the treasurer as in arrear for taxes thus: Lots Nos. one and two in the second concession, west of Hurontario-street, in the township of Mono, six pounds and ten shillings.

Eighth. That at an adjourned sale by the Home Sheriff, on the 5th of January, 1842, the whole of said lot number one was by him put up for sale for three pounds, twelve shillings and sixpence, being three pounds and five shillings arrears of taxes, and seven shillings and six pence expenses, &c.; at

which sale the plaintiff, Ridout, purchased for the said sum of three pounds twelve shillings and six pence the lands now in question, being part of the east half, and no part of the west half of the lot: that by the treasurer's books the arrears of taxes on both half lots appear paid by such sale, and that the sheriff made a deed of the land founded on such sale, dated the 6th of January, 1843.

Ninth. That the right of Seneca Ketchum to said east half was sold by the same sheriff under a writ of Fieri Facias against the lands, and purchased by the defendant, Jesse Ketchum, under which he claims to be entitled to the twentyfive acres claimed by the plaintiffs. The sheriff's sale for taxes and deed to the plaintiff Ridout thereunder are not disputed by the defendants.

Ridout afterwards conveyed to Owen, Miller and Mills, who conveyed to Williams, who conveyed to the plaintiff Owen. The plaintiffs being nonsuited in Michaelmas Term last, A. Crooks, for the plaintiffs, obtained a rule on the defendant to shew cause why the nonsuit should not be set aside.

Dalton, for the defendant, shewed cause during the term. He referred to Stafford v. Williams, 4 U. C. Q. B. 488; Doe Bell v. Reamer, 3 U. C. O. S. 47; Doe McGill v. Langton, 9 U. C. Q. B. 91..

Crooks, in reply, contended that there was an error, which began with the treasurer, and which error was protected by the statute 6 Geo. IV. ch. 7, citing Doe Bell v. Reamer, 3 U. C. O. S. 47.

That there is a distinction between this case and the case of Doe McGill v. Langton, 9 U. C. Q. B. 91: that if the owner of this lot had come forward after the sale the treasurer would be obliged to receive the amount of the taxes, and the purchaser could have received from the sheriff the difference between that sum and the amount for which it sold.

That the essentials to ground a sale upon were, that the land was granted by the Crown; there were eight years' taxes due, and no distress, and therefore the land was liable to be sold for such taxes, and that the only informality was by the treasurer in not advertising according to the form of the statute-Doe McGillis v. McDonald, Easter Term, 4 Vic.;

Doe Bell v. Reamer, ante; Boulton v. Ruttan, 2 U.C. O.S. 262; Doe dem. Stata v. Smith, 9 U. C. Q. B. 658; Jarvis v. Brooke, 11 U. C. Q. B. 302; Jarvis v. Cayley, Ib. 289; Mather v. Priestman, 9 Symes, 352; Cole v. Cole, 6 Hare, 517; Sug. Ven. & Pur. 11th Ed. 68; Lloyd v. Jones, 9 Ves.

37.

Cozens-That the owner of the land would not be prejudiced by any act of the officer-Doe Upper v. Edwards, 5 U. C. Q. B. 568.

That the error was not in the treasurer's books, but in his return to the Quarter Sessions, and the clerk of the Quarter Sessions directed the sheriff to sell under that return: that the whole twenty-five acres were taken off the east half, and that the owner of that half ought to redeem that half and had nothing to do with the west half; and that the twenty-five acres being sold for the taxes due on the whole lot, he ought to be admitted to redeem that twenty-five acres for the amount of taxes due on the east half.

MACAULAY, C. J.-The provincial statute 59 Geo. III. ch. 7, sec. 12, enacted that the Surveyor General should furnish the treasurer with a list or schedule of the lots in every township, &c., as the same are designated by numbers and concessions or otherwise upon the original plan thereof, in which list it shall be specified in columus opposite to each lot respectively to whom the said lot or any and what part thereof has been described as granted by His Majesty, and whether the same or any part thereof be yet ungranted, &c.

Section 13. That all lands described as having been granted, &c., shall, from the time they are returned in the said schedule, be assessed and charged to the payment of the rates or taxes imposed by that act, &c.

Section 14. That the treasurer shall keep an account for every township, &c., according to the list or schedule furnished by the Surveyor General, in which account he shall particularly enumerate every lot or parcel of land in the said township, &c., describing the same as in the said schedule, and shall charge the same with, or credit it for the amount of the taxes and rates payable or paid in respect thereof for each and every year, &c.

Section 15. Rates to accumulate by an increased proportion if suffered to remain in arrear, &c.

The above act was repealed by the 13 & 14 Vic. ch. 66, previous to which however the provincial statute 6 Geo. IV. ch. 7, sec. 6, enacted that the treasurer should at the next general Quarter Sessions of the peace after the 1st of July, 1828, present to the justices in Quarter Sessions assembled an accurate account of all lands in his district upon which the assessments imposed by the several acts of the province, or any part thereof, should have been in arrear for eight years; specifying in such account the lot or parcel of land by the number, concession and township or otherwise, as the same appeared in the schedule furnished to the said treasurer, and specifying also the amount due for assessments thereon, &c., and so in each succeeding year.

Section 7. That upon such accounts so to be made and rendered by the treasurer the clerk of the peace was to make out a writ for levying the assessments appearing to be due in each township, &c., specifying in such writ the particular lot or parcel of land, and the amount due thereon which might be, according to the form given in schedule A of that act, stating the lots or parcels of land with the sum charged against the same in the treasurer's accounts, remaining in arrear up to the expiration of the last year before such account was rendered, by sale of such portions of the lands on which the assessments were respectively chargeable as might be sufficient for that purpose, provided there was no distress upon the lands from whence the same might be made; and if any such distress, then to levy the same by sale of such distress. Section 12 provided for the manner of selling such lands. Section 13. Beginning at the first angle on that side from which the lots are numbered and measure backward, taking the requisite portion of the front, &c.-See also sec. 14. Secs. 17 & 18, provided for redemption, &c.

Section 22. No omission of any direction contained in that act, relative to notices or forms of proceeding, previous to any sale made under that act, should render such sale invalid, &c.

The statute 7 Wm. IV. ch. 19, sec. 2, contained further provision respecting the manner of selling lands for taxes, and