Mayor and Aldermen of Morristown e. King and Wife.

six and seven acres, to O. C. King, and conveyed the title to his wife during her life with remainder to her children, by name, who were all minors.

This bill was filed, alleging in substance, the facts above stated, suggesting that the complainant may not have acquired the title to said lot, and seeking to enforce the lien for the taxes thus assessed by the sale of the lot so purchased by them at said tax sale.

The bill was demurred to by King and wife, and their minor children by their guardian ad litem, upon the ground that the assessment of said lots for taxation, was void for want of any sufficient description of said lots by which they could be identified, and because said lots in question purchased by them had been attempted to be sold for the entire amount of taxes assessed upon all of said lots, they not being contiguous or forming one tract, and because said sale was void. The demurrer was overruled and the parties answered, setting up these, among other defenses, by the answers. The chancellor granted the relief prayed for, and decreed the lot in controversy to be sold for the whole amount of the taxes assessed upon all of said lots, and the respondents have appealed.

By the act of 1813, ch. 98, sec. 3, carried into the Code, secs. 554 and 555, "assessed taxes and the costs of reporting land for sale for taxes, shall be and remain a lien upon all lands and other real estate, * * when they shall become due and payable according to law. This lien shall extend to each and every part of all tracts or lots of land, notwithstanding any division or alienation thereof."

Mayor and Aldermen of Morristown v. King and Wife.

By section 569 of the Code, it is provided, "that in describing lands assessed, where it can be done, the surveyor's district, range, township, section and sectional sub-division shall be shown. If this cannot be done, the assessor shall adopt the mode of description which will most clearly and conveniently identify the property. Where several tracts or parcels of land, belonging to the same person, lie contiguous, forming one entire tract, the whole may be included in one valuation and so extended."

It has been repeatedly held that where the State, or a county or municipal corporation has become the purchaser of land under a sale for taxes assessed, they may waive any claim of title under such sale and come into a court of equity to have the lien enforced by a sale of the land for the taxes assessed upon it: Mayor and Aldermen of Edgefield v. Brien, 3 Tenn. Ch., 673; City of Memphis v. Looney, 1 Leg. Rep., 288; State v. Duncan, 3 Lea, 679.

.

It is insisted here, however, that the assessment is absolutely void for want of any description of the land by which it can be identified, and also because five wholly separate lots not adjacent or forming one tract, were assessed jointly and as a whole at the value of $10,000, without placing or assessing its proper value upon each lot as it should have been done. There is no question but that these lots attempted to be so assessed were not contiguous. The Commissioners have so reported, and this part of their report is unexcepted to. There can be no question then, that it was illegal to sell one of the lots so situated for the entire

Mayor and Aldermen of Morristown v. King and Wife.

amount of taxes assessed upon all. If this were the only objection, however, the complainants might be entitled to relief to the extent of enforcing the collection of its proportionable part of these taxes, according to its relative value by a sale of this lot. But the question recurs, was the assessment void, and if so can a void assessment create any lien that can be enforced? By section 627 of the Code, "to make the sale valid, etc., it shall be sufficient that the land sold lies in the county and is sufficiently described."

In the assessment, this lot or the lot alleged to be this lot in controversy, was described as "one lot on Cumberland and Third South street." By this description alone was advertised and sold, but by the report of the sale an accurate description was given of it.

As we have seen, in describing lands assessed, the surveyor's district, range, township, section and sectional sub-division, where it can be done, is required to be given. Where this cannot be done, the assessor shall adopt the mode of description which will most clearly and conveniently identify the land. Judge Cooley, in his work on Taxation, lays down the rule to be that in listing the land, it must be described with particularity sufficient to afford the owner the means of identification and not mislead him. A description that would be sufficient in a conveyance between individuals would be generally sufficient: Cooley on Taxation, 282-3.

It cannot be contended that the description by which this lot was assessed, affords any means by which it could be identified. Besides, the record shows. 43-VOL. 11.

Cowan, McClung & Co. v. Gill.

that three of the lots mentioned in the assessment as belonging to Eanes were on Cumberland and Third South streets, and the same description would apply as well to any one of them as to another. While it is very desirable, in order to make the burden of taxation equal, that the remedies provided by law for the enforcement of the payment of taxes should be sustained by the courts so far as it can be done, consistent with well established principles, yet we are constrained to hold that the assessment in this case was void for uncertainty and created no no lien upon the property which this court can enforce. Nor was it cured by the description contained in the report of sale. The demurrer should have heen sustained. The consequence is that the chancellor's decree was erroneous and must be reversed. The Referees have so re

ported. The exceptions to the report will he disallowed. and the bill dismissed with costs.

COWAN, MCCLUNG & Co. v. SAMUEL GILL et al.

1. REGISTRATION. Deed of trust. A deed of trust relates from its regitration to its execution, and is valid against all existing and subsequent creditors who have acquired no lien prior to its registration.

2. SAME. Same. Fraud. Mere silence of trustee and beneficiaries of the execution of the trust deed and failure to register, will not vitiate the deed for fraud.

Cowan, McClung & Co. v. Gill.

3. SAME. Same. General assignment. A trust deed executed fourteen months before a general assignment, but not registered until within three months of said assignment, is not void under the act of 1881, ch. 121. The deed is made when executed, not when registered. 4. PARTNERSHIP. Surviving partner. Individual creditors. A partnership is dissolved by the death of a partner, and if the surviving partner purchase goods afterwards and add to the partnership assets, such purchases are the individual assets of the surviving partner, and are first liable to the satisfaction of the individual creditors of the surviving partner.

5. SAME. Same. Commingling assets. If the aurviving partner commingle his individual property with the firm assets, his individual creditors do not thereby lose their lien on the property, but an account will be ordered to ascertain the amount of individual and partner ship assets.

6. SAME. Joint and separate creditors. If a partner is indebted to the firm, or has taken more than his just share of the joint funds, the joint creditors will not be admitted to prove against the separate estate of that partner until his separate creditors are satisfied, unless it be shown he acted fraudulently with a view to benefit his separate creditors.

7. TRUST DEED. Beneficiary may attack. When. If a beneficiary under a general assignment which recognizes a prior trust deed, file a bill to set aside the prior trust as fraudulent and is unsuccessful, he does not thereby forfeit his right to share in the general assignment.

FROM GRAINGER.

Appeal from the Chancery Court at Rutledge. H. C. SMITH, Ch.

LUCKY & YOE for complainants.

BENJ. J. LEA, G. W. PICKLE, J. P. EVANS and SHIELDS & SHIELDS for defendants.

TURNEY, J., delivered the opinion of the court.

On December 23, 1880, Samuel Gill, for the purpose of securing James T. Shields, John B. Hoyle and