The opinion of the court was delivered by

Upon the trial of this case, the plaintiff in the court below, defendant in error here, rested his title upon a certain tax deed which he introduced, and which was received by the court as evidence against the objection of the defendant, plaintiff in error. The court based its judgment-on this tax deed, and the only question presented is as to its validity. The deed purported to have been issued under and in accordance with the provisions of an act entitled “An act to provide for the sale of lands for taxes due and unpaid thereon,” approved February 27, 1872. It is apparent from the face of the deed that all the proceedings attempted to be had under said act of 1872, including the sale, were premature. The first section of said act provides, that “whenever any lands or town lots that may have been or shall hereafter be sold for any taxes due thereon, that have been or shall hereafter be bought in by any county for such taxes, shall be or shall hereafter be unredeemed for the term of five years from such sale, and no person shall offer to purchase the same for the taxes, penalties and costs due thereon, it shall be the "duty of the treasurer of such county to sell such lands or lots at public auction to the highest bidder for cash, after having first given at least four weeks’ notice of such sale and of the property to be sold, with a statement of the taxes, penalties and costs due on such lands or lots, up to the date of such sale, in some newspaper of general circulation in such county.”

By these provisions, the property to be sold thereunder must have been unredeemed for the term of five years from the sale to the county, before the treasurer is authorized to take steps to sell it again; in other words, the notice of sale, *609•as well as the sale, must be subsequent to the term of five years after the property has been bought in by the county. The authority given the treasurer to proceed under the act, -rests upon the precedent conditions, that the property has 'been unredeemed for five years, and that no person has •offered to purchase the same for the taxes. He has no power to anticipate that the property will not be redeemed within the five years, and prior to the expiration of the five years •commence making costs and expenses, by giving notice of a future sale. In order that a tax deed shall be valid under said act, there must be a substantial regularity in all the proceedings. The deed accepted in evidence showed that the premises therein described were bought in by Doniphan •county, on the first Tuesday of May, 1869; that the second sale of the property was made on the 9th day of May, 1874; and that the notice of sale was given prior to the expiration •of the five years the property must remain unredeemed, before proceedings could be taken under the act of 1872. The •officers, in their eagerness tp hasten the day of sale, did not defer all proceedings until the expiration of the term of five years, and therefore failed, to comply with the law. The ■deed therefore was invalid, and ought not to have been accepted as the basis of title in Rullman.

It is very doubtful whether the deed was otherwise sufficient in form. It did not recite that the land was subject to taxation, or.that any taxes were assessed thereon. But it is unnecessary to notice the matter further.

Eor the fatal defect appearing upon the face of the tax ■deed, the judgment of the district court must be reversed, and the cause remanded for a new trial.