(27 N. M. 454, 202 Pac. 690.) not involve the question of the payment of the tax. Here we are determining whether the tax was in fact paid, not primarily whether the assessment to "unknown owners" was good; and upon that point the former case is not authority. We are not presented with the issue as to whether payment may be shown to avoid a tax sale based upon a record which incorrectly shows the tax unpaid, nor as to whether payment under one assessment, valid on its face, will avoid a sale under another equally regular, -a question which arises in the ordinary case of double assessment. The authorities on such questions are uniform to the effect that payment in fact may be shown, and there would seem to be little chance for argument to the contrary. Here the question is somewhat different. We are determining whether payment under an assessment, invalid because it fails to describe the land sufficiently for identification, is good payment on the land intended to be assessed, so as to avoid a sale under another assessment with a proper description. the amount which he pays. He has all to gain and nothing to lose. The remedy, as against the owner of the land, is a harsh one in any event, and to hold that, where he has in good faith attempted and intended to return his land and to pay the taxes upon it, he must nevertheless lose it because of a failure to obey the provision of law which says that his assessment must properly describe the land, is to lay down too severe a rule. While it is true that the result would come from his own fault, the forfeiture of his property would be punishment far greater than the offense. It being admitted in this case. that Schroeder acted in good faith, intended to assess his land, intended to pay the taxes upon it, and believed that he had done so, and that the county authorities accepted the payment with the same understanding, we hold that it was good payment in fact upon the 160 acres of land which he then owned; and that this payment was a bar to any sale under the second assessment to "unknown owners" may be shown in avoidance of it, and, when so shown, defeats it. Taxes-payment -erroneous effect. The primary purpose of every law for the enforcement of tax liens is to obtain payment of the tax. The end desired is the obtaining of While cases presenting this exact the funds necessary for govern- question are few, we are not withmental purposes. If that payment out authority for this decision. In has been obtained, the primary pur- Kellogg v. McFatter, 111 La. 1037, pose of the law has been accom- 36 So. 112, the facts were that Kelplished; and this is true whether or logg was the owner of the 60 acres not payment is made with technical of land in the N. W. 1 of section 20. accuracy. While the law provides For the year 1897 there was an atfor a tax sale, and allows a purchas- tempt to assess this land, but it was er at such sale to acquire title, de- described as "lying in the N. E. " vesting the former owner, that is of that section instead of the N. W. but a method by which the county. Another assessment was made to obtains its funds. The owner of the land having failed to pay, the county obtains its money from another. Under our statutes the purchaser at such a sale is amply protected. If the sale is invalid for the reason that no tax is in fact due, he recovers back from the county the amount which he paid to it. If the sale is valid, he obtains under it property usually worth many times A. E. Minor of a portion of the N. W. of section 20, which included the Kellogg land, and under that assessment the land was sold for taxes. Before this sale Kellogg had paid the taxes under the assessment containing the erroneous description. The court held that the payment by Kellogg on his 60 acres of land was a good payment thereon, although the description of the land on the roll was erroneously given; and further stated: "A. E. Minor, having no interest in the matter, and being, besides, an absentee, made no opposition to this assessment; and Kellogg, having paid his own taxes in full for that year, rightfully considered that he was no longer concerned in the matter of tax sales for the taxes of that year. The attempt of the tax collector to collect taxes erroneously supposed to be due on that property and by A. E. Minor was utterly without justification, and any adjudication made under such circumstances was absolutely null and void." In Meller v. Hodsdon, 33 Minn. 366, 23 N. W. 543, the facts were that Hodsdon was the owner of certain land in what was known as "lot 2." The lot contained about 55 acres. The land was assessed to him as the west 30 acres of lot 2, and he paid the taxes so assessed and listed in his name. This was not a good description of his land, and did not cover all that he owned. An additional assessment was made to "unknown owners," the land being described as "that part of lot 2, except west 30 acres and southeast 10 acres," and under this description a tax sale was made. This tax sale was attacked on the ground that the taxes had been paid under the incorrect assessment. The court found that it was shown by the evidence of the assessor that he in fact valued and assessed the defendant's land in lot 2 in connection with the rest of his farm under the first description, so that an assessment and valuation of the entire lot was in fact made, and then held: "It is not necessary to consider whether the description would be sufficient to support a tax title as against the owner; but, upon the issue of payment by him of the taxes, under the assessment originally made, we see no reason why the facts we have recited were not proper to be shown in evidence, and upon them we think the finding warranted that the taxes lawfully levied upon defendant's land in lot 2 for the years in question were actually paid by him." For In the case of Bender v. Bailey, 138 La. 433, 70 So. 425, it appears that an assessment was made for the year 1904 in the name of Gus Bender to the "south half of south half of section 17, township 22, range 15," and under this assessment the property was sold. the same year there was assessed to L. A. Thomason land as follows: "Number of acres, 160, $200." This assessment contained no further description of the land. Thomason paid the taxes under this assessment, and proved that the property on which he intended to pay was the same as that assessed to Gus Bender; Thomason not being the owner of any other 160 acres of land. There was no dispute as to the identity of the property, as there is none in the present case. The court said: "It is quite clear from the evidence of this last witness that L. A. Thomason was the owner of the 160 acres in question; that he was not the owner of any other large body of land in Caddo parish in the year 1904; that the assessment of the property to him and the payment of the taxes thereon relieved the property from the assessment and taxes in the name of Gus Bender for the same property, for the same year; that the tax sale was null; and that the property belongs to plaintiffs." In Lewis v. Monson, 151 U. S. 545, 38 L. ed. 265, 14 Sup. Ct. Rep. 424, certain land was originally described as lot 6 in a designated section, and under this assessment the owner paid the tax. By a later map, which was effective at the time of the assessment, not all of the land was included in lot 6, but a part of it was within lot 7. An assessment was made against lot 7, and, the tax not being paid under this assessment, the lot was sold. The question was as to whether the owner might invalidate this tax sale by showing that the payment which he made upon lot 6 was intended to cover all of the land. After quoting (27 N. M. 454, 202 Pac. 690.) from the opinion of the Mississippi court, the Supreme Court of the United States says: "That the owner was not bound, as matter of law, to take notice of the new map, is shown by that decision, and if he was not bound to know, and did not in fact know, and paid under a mistake, relying upon the ancient descriptions and the old map, and intended in good faith to pay all his taxes, then clearly, within the scope of that decision, the sale was invalid, and the deed fails." The decision in this case cannot be influenced by the fact that the present claimant under the tax title is not the original purchaser, but a subsequent grantee from him. If the tax title in the hands of the first purchaser is invalid, it gains no validity by transfer to another. The stream of title rises no higher than its source. The purchaser of the tax title took with the knowledge that it might be defeated by proof of payment of the tax, and his grantee is in no better position. The question of notice and of the recording acts is not involved in this case. For the error of the trial court in sustaining this demurrer, the judgment is reversed, and the cause remanded; and it is so ordered. Raynolds, Ch. J., and Parker, J., concur. Petition for rehearing denied. ANNOTATION. Payment of tax assessment which improperly describes property owned by taxpayer as good payment on that property. Several of the foregoing cases are set out so fully in the reported case (SHACKLEFORD v. MCGLASHAN) as to render further statement thereof unnecessary. In Hollywood v. Wellhausen (Tex.) supra, the facts were stated by the court as follows: "In January, 1896, the tax assessor of Lavaca county assessed lot 6 of block No. 1, Mahon addition to the town of Yoakum, to an unknown owner for the taxes of 1896. During the same year appellant Peter Hollywood rendered the property for taxation as 'lot No. 6, block No. 1, Yoakum, Lavaca county, Texas,' omitting the words 'Mahon addition.' The land in controversy at the time belonged to appellants, and was then and is now their homestead. Appellants paid the taxes assessed for 1896 on the lot they had rendered for taxation. In April, 1897, a judgment, regular in every respect, was obtained against the unknown owner, who was duly cited and represented by an attorney appointed by the court, for the said taxes, amounting to $2.25 for 1896, and foreclosing a tax lien on said lot 6 as well as lot 9 in block 1, Mahon addition to Yoakum. Under the judgment the land was regularly sold and bought by appellee." It was held that the tax sale was void. That decision was followed on similar facts in Mote v. Thompson (Tex.) supra. In Hurd v. Melrose (Mass.) supra, it appeared that, by mistake of the assessor, the numbers of two adjacent tracts were transposed on the assessment roll. A person desiring to pay the tax on tract 416 asked for the amount, and was told the amount actually assessed against tract 418, which he paid. It was held that this must be regarded as a payment pro tanto on the tax actually levied on tract 416, so that a sale of that tract for unpaid taxes was invalid. In Richter v. Beaumont (Miss.) supra, the court stated the facts as follows: "For several years prior to 1883, a map of Woodville was recognized by the citizens and officials of the town, and the county assessors, as the map of the town; but this map was never adopted by an order of the board of aldermen until 1887. By the ancient division of the town and designation of lots, lot 6 embraced the parcel of land sued for in this action, which parcel is, by the modern map, a part of lot 7. The defendant (appellant) was in 1883, and prior and subsequent thereto, in the actual possession of lot 6, and he gave the description of his land to the assessor as lot 6, and it was so assessed, he intending and understanding that lot 6 extended eastward according to the ancient order, so as to include what by the new map is part of lot 7. He paid the taxes on lot 6, and lot 7, not being paid on, was sold for taxes." It was held that if the payment was made in ignorance of the new map, and with the intention of paying the taxes on the entire tract, a sale for taxes of the portion included by the new map in lot 7 was invalid. A similar holding was made on almost identical facts in Lewis v. Monson (1894) 151 U. S. 545, 38 L. ed. 265, 14 Sup. Ct. Rep. 424, set out in the reported case (SHACKELFORD V. MCGLASHAN, ante, 75. In Merton v. Dolphin (1871) 28 Wis. 456, it appeared that certain property was platted as lots 8 and 9, and was assessed for taxes by that description. Later, without the knowledge of the landowner, another plat was made on which the property was designated as lots 8, 9, 18, and 19, and assessments were thereafter laid in accordance therewith. The owner paid all taxes levied against lots 8 and 9, believing that he was paying all taxes against his property. The portion described as lots 18 and 19 was then sold for taxes. The court held that the second platting was unauthorized, and that therefore the payments made satisfied all taxes on the land. W. A. S. WILLIAM GEORGE et al., Plffs. in Err., V. CONNECTICUT FIRE INSURANCE COMPANY of Hartford, Connecticut. 1. A provision in a standard insurance policy provided by the laws of this state reads as follows: "No suit or action on this policy, for the recovery of any claim, shall be sustainable in any court of law or equity Headnotes 1 and 2 by ELTING, J., and 3-5 by MCNEILL, J. (84 Okla. 172, 200 Pac. 544.) until after full compliance by the assured with all the foregoing requirements, nor unless commenced within twelve months next after the loss occurred." Held, this constitutes a statutory limitation, and not a contractual limitation. [See note on this question beginning on page 97.] 2. That said provision does not come within the purview of Rev. Laws 1910, § 4654, and is not an exception or a special case with a different limitation, as is contemplated by the said section of article 2 of the Revised Laws of Oklahoma of 1910, but is controlled by § 4662 of said chapter, which permits the filing of a second suit within one year after reversal or failure of a first suit commenced within the time limit. On Second Petition for Rehearing. Insurance - divisible. 3. In this jurisdiction the general rule is: Where an insurance policy is issued and different classes of property are insured, each class being separate from the other, and insured for a specific amount, the contract should be considered as a divisible contract. [See 14 R. C. L. 940; 3 R. C. L. Supp. 319; see also note in 5 A.L.R. 810.] proof of loss provided by the policy. The right to so examine was a privilege reserved to the company, which they could exercise or not as they might choose, but was not a duty imposed on the assured. [See 14 R. C. L. 1342; 3 R. C. L. Supp. 387.] - duty to submit to examination. 5. The fire insurance policy in the instant case contained a provision requiring the assured to submit to an examination, when requested by the company, and further provided that no suit should be sustainable until full compliance with the terms of the policy. The assured submitted to an examination, but refused to answer certain questions, upon advice of his counsel, contending the same were immaterial; thereafter suit was instituted upon the policy, and defendant pleaded a breach of the conditions of the policy by assured's refusal to answer certain questions. Held, the refusal to answer material questions was considered not to work a forfeiture of the policy when the policy contained no such provision, but the plaintiff would have no right to further prosecute his action until such questions were answered. [See 14 R. C. L. 1342; 3 R. C. L. Supp. 387.] ERROR to the District Court for Kay County (Bowles, J.) to review an order sustaining a demurrer to a petition filed to recover the amount alleged to be due on a fire insurance policy. Modified. The facts are stated in the opinion of the court. Mr. William S. Cline, for plaintiffs in error: Plaintiffs had a year after the failure of their first suit to commence this action. Myers v. First Presby. Church, 11 Okla. 544, 69 Pac. 874; Hatchell v. Hebeisen, 16 Okla. 223, 82 Pac. 826; Wilson v. Wheeler, 28 Okla. 726, 115 Pac. 1117; Jacobs v. St. Paul F. & M. Ins. Co. 86 Iowa, 145, 53 N. W. 101; Lancashire Ins. Co. v. Stanley, 70 Ark. 1, 62 S. W. 66. Messrs. John W. Scothorn and Albert L. McRill for defendant in error. 23 A.L.R.-6. Messrs. George B. Rittenhouse, F. A. Rittenhouse, John F. Webster, and P. T. McVay, amici curiæ. Elting, J., delivered the opinion of the court: On December 18, 1911, Joe George, one of the plaintiffs in error in this suit, sustained a loss by fire. The property so lost was insured under an insurance policy issued by the Connecticut Fire Insurance Company of Hartford, Connecticut, a corporation, which is the defendant in error in this suit. On the 3d |