affiadvit; that on the 20th of March, 1884, upon proof of publication of notice to her, as a nonresident of the state, she was called and defaulted, and a decree entered foreclosing a tax lien in favor of said Thompson, and the land sold at sheriff's sale, of which proceedings she had no knowledge; that the decree of the Jasper circuit court foreclosing said lien against her is null and void, because the court had no jurisdiction to enter the same; that it is a cloud upon her title, and should be set aside as to her, show that appellee was a party to the judgment she seeks to vacate.

There is nothing in the finding that tends to show that appellee was not a party to the record. On the contrary, the finding shows she was a party to both the notice and record containing the decree of said court. Had the finding recited the form of what purported to 497 be the notice given and the record thereof, as they really existed, "— McCorkle, wife of John McCorkle," it would have been apparent to the court, that there was no notice to appellee, and no record to which she was a party, and hence nothing which she was estopped to deny.

66

Having failed to find such facts, and having found that there was a complete record of service, as to appellee, made in good faith, the record concludes her from asserting the contrary.

Where the special facts found show that the assault was purely collateral it would violate well-established rules to allow it to prevail upon matters dehors the record.

The conclusions of law, from the facts found, are errone

ous.

Being of the opinion that justice will be best subserved by instructions to the court to grant a new trial, rather than to restate conclusions of law, judgment is reversed, with instructions to the court to grant a new trial.

OPINION ON MOTION TO MODIFY MANDATE.

DAILEY, J. The learned counsel for the appellant have filed a motion to modify and change the decision and the mandate in this cause.

This motion is supported by two vigorous and able briefs, which present substantially the same questions. The case had due consideration, and the questions involved were fully considered in the original opinion, and we deem it unnecessary to repeat what is there said.

It is clear that a complaint by a judgment defendant, as

sailing a decree on the ground of want of actual notice and fraud in its procurement, constitutes a direct attack 498 thereon, and it is unnecessary to further collate authorities in support of so plain a proposition.

Counsel say "the appellee was not a necessary party to the suit to quiet the title of the appellant to the land, because her right was not of record in Jasper county, so the question as to whether McCorkle, wife of John McCorkle, was a sufficient description of the person of the appellee is not material."

This position is not tenable. Appellant attempted to make her a party, and evidently thought it was essential. We fully concur in the theory he then adopted, because it harmonizes with, and is supported by, section 2143 of Elliott's Supplement, which says: That "all parties who have, or claim to have, or appear of record in any of the public offices of the county where such land or lot is situated, to have any interest in or lien upon such lands or lots, shall be made defendants in such suit."

The appellee claimed, and still claims, an interest in the land, and is a necessary party defendant.

When one seeks, by constructive notice, to obtain a judgment against another, there must be a strict compliance with the statute, because a notice not provided for by statute does not constitute notice, and cannot divest title.

Section 2491 of the Revised Statutes of 1881 provides that "A surviving wife is entitled, except as in section 17 (section 2483) excepted, to one-third of all the real estate of which her husband may have been seised in fee simple at any time during the marriage, and in the conveyance of which she may not have joined, in due form of law, and also of all lands in which her husband had an equitable interest at the time of his death," etc.

"The rights of the widow, under this section, do not descend to her as heir; she takes by virtue of her marital 499 relations with her deceased husband ": May v. Fletcher, 40 Ind. 575; Bowen v. Preston, 48 Ind. 367.

By virtue of this statute, during the lifetime of the husband, the wife had an inchoate right in the real estate in controversy contingent upon her surviving him, and which could not become absolute except by his death. Her claim, during the entire interval, was in such a position that it could not be asserted by any one. The case was not one of

mere disability growing out of coverture. Strictly speaking, she had no estate in the premises; it was a mere expectancy. Had she died before her husband the right would have been extinguished. It could not be transmitted by will or the laws of descent. It was one she could not transfer by sale, except to relinquish it to the owner of the fee. It could not have been sold on execution, and is not barred by a tax sale and conveyance in consequence thereof. She could have brought no action during the interim to arrest the running of the statute, had it once been set in motion against her, and she had no right or title which could have been enforced while the husband lived: Miller v. Pence, 132 Ill. 149; McClanahan v. Williams, 136 Ind. 30.

It is true the legislature may declare that a wife's inchoate interest shall be divested by a tax sale, and a conveyance of the land thereunder, but our lawmakers have not so provided, and until it has been so enacted by clear and express words, her contingent interest should not be destroyed by judicial decision. This interest is in lieu of and is analogous to dower, except it has been enlarged from a life estate to a fee, and is guarded with more jealous care by legislative enactment and judicial decision.

It is urged that appellant and appellee could not be tenants in common, unless the latter had been such tenant 500 with the state, since, it is claimed, the former gets his title from the state. This is incorrect. The state never owned this land, and could not buy land at a tax sale. The only thing the statute speaks of as belonging to the state, when the taxes on realty are not paid, is a lien therefor. It is assumed as a fundamental proposition that the lien of the state for taxes is paramount; then it is concluded that all interests, vested and inchoate, are subject to the sovereign right. It is true an inchoate right does not exist against the sovereign will, in the exercise of the right of eminent domain, because in such case the property itself is taken and paid for, while in the assessment and collection of taxes the property itself is not taken; no compensation is guaranteed or given-the tax is a lien on the property, and the property is not taken by the state to satisfy the lien-but it is sold for that purpose. The distinction between taxation and the taking of property in the exercise of the power of eminent domain is clear and well recognized in the authorities: 1 Blackwell on Tax Titles, 5th ed., secs. 11, 51.

This being so, principles governing as to the law of eminent domain are not applicable in considering the question of the law of taxation.

The case of Duncan v. City of Terre Haute, 85 Ind. 104, involving a dedication by a husband, is instanced, but is not in point, for the reason that it arises under a different statute, and on a different state of facts. No case is decisive of any thing except the question involved and decided in it, and whether it was well considered or not it cannot control the decision of this case.

It is said by counsel that a tax title is not a derivative title; that it does not come from the owner, but from the sovereign; that the purchaser does not derive title through the former owner; that there is no privity between 501 them, and that taxes are not laid upon titles, but upon the land.

In answer to this we quote from Blackwell on Tax Titles, third edition, page 547: "In those states where the tax is a charge upon the land alone, where no resort, in any event, is contemplated against the owner or his personal estate, and where the proceeding is strictly in rem, the tax deed will undoubtedly have the effect to destroy all prior interests in the estate, whether vested or contingent, executed or executory, and those in possession, reversion, and remainder. In such case the tax law itself is notice to the whole world of the liability of the land for all public assessments... . On the other hand, where the law requires the land to be listed in the name of the owner of the fee, or of any other interest in the estate, provides for a personal demand of the tax, and in case of default authorizes the seizure of the body or the goods of the delinquent in satisfaction of the tax, and in terms, or upon a fair construction of the law, permits a sale of the land only, when all other remedies have been exhausted, then the sale and conveyance by the officer passes only the interest of him in whose name it was listed, upon whom the demand was made-who had notice of the proceedings, and who alone can be regarded as legally delinquent. In such cases the title is a derivative one, and the tax purchaser can recover, in ejectment, only such interest as he may prove to have been vested in the defaulter at the time of the assessment. Any other construction of laws containing such provisions would be in violation of the spirit which moved the legislature to enact them, and be the means of depriving innocent persons of their estates."

Our law requires the land to be listed in the name of the owner. Section 6378, a personal demand of the tax. tion 6427 authorizes the personalty to be first 502 sold. Sections 6447, 6429, and the realty cannot be sold as long as there is personalty to pay the tax: Abbott v. Edgerton, 53 Ind. 196.

It is also made the duty of an executor or administrator to pay the taxes accrued against the personal and real estate of the decedent at the time of his death: Rev. Stats. 1881, sec. 2378.

These provisions are almost identical with those laid down by the author, and upon that authority it is plain that the purchaser at the tax sale did not get the appellee's inchoate interest, and that by such sale her interest was in no wise affected.

We think it is settled law that no part of the tax paid by the appellant on the land, before the appellee's inchoate rights vested, can be charged to her. The appellant had possession of the entire premises until then, and gets two-thirds of it in fee. As he held a deed for it, and all of it was listed in his name, and taxed to him, and none to the appellee, there was no duty resting upon her to pay the taxes on onethird of it, and to have done so would have laid her liable to an action on his part for slandering his title, had she insisted that she owned the one-third of the tract in fee. powerless, and could do nothing to protect herself.

She was

Can it be said, notwithstanding all this, that the statute, will run and bar her rights? It would be unjust to give in such construction, and we are not inclined to do so.

In view of what we have said it cannot be insisted that she could prevent the misfortune by paying the taxes herself. She did not own the land, and was under no obligation whatever to do so. The law never contemplates that a person shall do an unreasonable act to protect her rights. Moreover, she could not know that she would survive her hus band; and it would be very 503 unreasonable to require her to pay taxes which she never could recover back, and when there was no assurance that she would, in the end, have a vested interest in the land.

We feel that it would be unjust in this case, for the reasons stated, to modify and change the decision and mandate. The motion is therefore overruled.