was also the result of a mistake, and the mistake is a mistake of fact. The lands were not taxable, for the reason that the consideration therefor had not been paid to the United States. The payment of that consideration,’which was the fee for surveying, was the fact which would render the lands liable to sale. The treasurer evidently supposed this fee had been paid, and for that reason offered the lands for sale. In this he was mistaken as to the existence or non-existence of the fact of the payment of the survey fee, and the mistake is therefore a mistake of fact. Roberts v. Adams Co., (Neb.) 25 N. W. Rep. 726; Same v. Same, 30 (Neb.) N. W. 406; Com’s of Saline County v. Young 18 Kan. 440.
A mistake of fact consists in “belief in the present existence of a thing material which does not exist, or of the past existence of a thing which has not existed.” § 888, Civil Code, (3512 Compiled Laws).
The mistake on the part of the treasurer, consisted in the belief that the Northern Pacific Railroad company had complied with all the conditions of its grant by the payment of the survey fees; which fact did not exist. The error arose from ignorance of a material fact, rather than from an erroneous conclusion, with a full knowledge of all the facts. Had the treasurer been fully cognizant of all the facts, yet drawn an erroneous conclusion therefrom as to their legal effect he would still not have been protected, as “ignorance of law will not furnish an excuse for any person, either for a breach, or for an omission of a duty.” Story, Equity Jurisprudence, § 110; Kerr on Fraud and Mistake, p. 396. And it is therefore immaterial whether the mistake of the treasurer was a mistake of fact or a mistake of law. Northrop v. Graves, 50 Am. Dec. 264; Black v. Ward, 15 Am. Rep, 162, and notes, pp. 183 and 184.
The sale in question was also the wrongful act of the treasurer. He derived all his authority to make it from the statute alone. Parker v. Sexton, 29 Iowa, 421; Hurley v. Powell, 31 Iowa, 64; Rhodes v.' Sexton, 33 Iowa, 540; Madson v. Sexton, 37 Iowa, 562; C. R. & M. R. R. Co. v. Carroll County, 41 Iowa 153; Blackwell on Tax Titles, p. 276, (star p. 252;) Black on Tax Titles, § 46; McInery v. Reed, 23 Iowa, 410; Sharp v. Speir, 4 Hill, 76. He is directed to sell “all lands, town lots and other real prop-
