to contracts. But reference to the averments of the amended answer shows that the idea of a special custom is distinctly negatived by the answer; nor would counsel contend that a mere special custom should receive judicial sanction as a means of building up title to land. A description in the tax roll, adjudged to be valid, in one county or locality in the state, must be held good in all parts of the state; otherwise, chaos in tax proceedings and in land titles would supervene.
The considerations already advanced have satisfied a majority of this court that the averments as to a general usage of language pleaded in the amended answer present a state of things which ought not to be left to the chances of nisi prius trials, and be permitted to be proved or disproved, as it might turn out. Hence we shall sustain plaintiff's assignment of error predicated upon the order of allowing the amended answer to be served and filed. The. chief justice, (Judge Bartholomew, ) while fully agreeing with the majority of the court in holding that the descriptions in question are without the sanctions of any general custom or law, and hence are insufficient as a basis of taxation, prefers to rest his concurrence on this branch of the case upon a somewhat different line of reasoning. I quote his language: “A description of realty in an assessment roll, to be sufficient, must be such a one as the law recognizes. It is not enough that it be such as may be, in fact, understood, or often or generally used. It must be such as must be understood in the sense that the law will not listen to the declaration that it is not understood. A defective or ambiguous description in a deed or contract may be cured by ascertaining the intention of the parties to the instrument, and giving effect to such intention. But this cannot apply to an assessment. Tax proceedings are in invitum, and there are no contracting parties. Primarily, the description must be such that it must be understood by, and will not mislead, the owner. It must also go further, and be such as must be understood by all persons desiring to purchase at tax sale. Theoretically this includes all persons capable of contracting.
