The tenant may well rely upon his title by actual occupation for many years previously to the institution of the *127present action, until some better title is shown. The tenant’s is the older and the better title, unless it has been lost by the sale for taxes in 1850. The validity of that sale is controverted, for various reasons.

The Rev. Sts. c. 7, § 7, require that “ all taxes on real estate shall be assessed to the person, who shall be either the owner or in possession thereof, on the first day of May.” The tax assessed upon William S. Homer was therefore clearly assessed erroneously. It is conceded that he was not the owner, or party in possession.

The further inquiry is, whether the provisions of c. 8, § 5, will cure this defect. That section provides, that “ if there shall be any error in the name of any person taxed, the tax assessed to him may, notwithstanding such error, be collected of the person intended to be taxed, provided he is taxable, and can be identified by the assessors.” Looking at this provision, it seems particularly intended to be applied to cases of actual collection of taxes from persons who ought to have been assessed, but where some error has occurred -in entering the name on the assessors’ list, or tax list, and to justify the levy on property in such cases. This court, in the case of Tyler v. Hardwick, 6 Met. 470, where the money had been paid by the plaintiff to avoid compulsory proceedings, gave a liberal construction to the above provision; holding it applicable to cases where the name was mistaken, not only by omitting, but by misnaming. In that case, there was no party interested or to be affected by the result but the party who was required to pay the tax. In the present case, had a similar mistake existed in the list, in reference to the name of the tenant or possessor, that case would have applied, and answered the objection.

The tenant here insists that he has the right to require the assessors to assess the land to him, because he was such tenant; or, if they do not, they must at their peril assess the tax upon the true owner of the land. This tax was assessed to William S. Homer, who was not such owner, as is conceded.

The next inquiry is, whether this name was inserted by mistake in the description of the name. One of the assessors *128testified that the tax was intended to be assessed to Charles S. Homer. Supposing that would, under the statute, have been sufficient as a case of mistake in the name, if Charles S. Homer had been shown to be the real owner, yet the difficulty then occurs, that there was no competent evidence in the case to show that Charles S. Homer was the owner of these premises.

But further; in the notices of sale, the tax was described as a tax to Henry S. Homer. The tax list had been altered by the collector after it came into his hands, the name of William S. Homer erased, and the entry of the tax made to “ Charles S. Homer, or owner unknown ; ” and this was succeeded by publishing notices of sale for a tax assessed to yet another person, '• Henry S.. Homer.”

We are of opinion that it is open to the tenant, who was in possession under an occupation for several years previously to the time when this list of taxes was made, to insist that those proceedings were irregular, and that no valid title passed by such sale, as against his older and better title than any shown to have existed at the time of assessing this tax.

New trial ordered.