OPINION OP THE COURT.

The plaintiff’s rights in this-are purely statutory. The Compiled Laws of 1897 provide as follows:

“Section 4070. In all cases where any person shall pay any tax, interests or costs, or any portion thereof that shall thereafter he found to he erroneous or illegal, whether the same be due to erroneous or improper assessment, or improper or irregular levying of the tax, to clerical or other irregularities, the board of county commissioners shall order the same refunded to the taxpayer Avithout discount.

“Section 4071. The Territorial auditor shall credit each county with the amount of Territorial tax that may haAre been abated as improperly assessed, as uncollectible, or that may have been refunded to the taxpayer, or purchaser of real estate erroneously sold, upon receiving a certified copy of the order of the county commissioners allowing the same.

“Section 4072. When by mistake or wrongful act of the collector, clerk, assessor or from double assessment, real estate has been sold on which no tax was due at the-time, the county shall refund to the purchaser the amount paid by him, with interest thereon at the rate of twenty-five per cent per annum; and the collector,, clerk or assessor, as the case may be, shall be liable on his official bond to the county for all losses sustained by the county from sales made through his mistake or misconduct.”

1 The assessment of the real estate in question against the estate of Talbott, deceased, was erroneous and void. Territory ex rel. Castillo v. Perea., Treasurer, 52 Pac. 1094, 8 New Mexico —. This court held that upon the death of an OAvner, his real estate descends to his heirs, and the assessment of real estate in the name of such deceased person is void.

2 Under tbe general rule, which obtains in most jurisdictions, the plaintiff would not be entitled to recover; but under the statutory provisions of this Territory, and especially under the provision of section 4070, quoted above; the plaintiff has a good cause of action, and is entitled to recover the amount paid by him or his assignor for the tax deed to the lands in question. The statute does not limit the right of action to the owner of the property assessed, but provides that “where any person shall pay any tax, interests or costs, or any portion thereof that shall thereafter be found to be erroneous or illegal, whether the same be due to erroneous or improper assessment, or improper or irregular levying of the tax, to clerical or other irregularities,- the board of county commissioners shall order the same refunded to the taxpayer without discount.” And section 4071 clearly indicates that this right is extended to1 the purchaser, wherein it provided that “the amount of the Territorial tax that . . . may have been refunded to the taxpayer or purchaser of real estate erroneously sold” shall be credited by the Territorial auditor to each county upon receiving a certified copy of the order' of the county commissioners allowing the same.

3 It does not, however, appear by whose mistake or wrongful act the erroneous assessment was made, nor is there any allegation in the complaint that it was through the mistake or wrongful act of the clerk, collector, or assessor, as required by the provisions of section 4072 to entitle the plaintiff to recover on the penalty. The plaintiff is, therefore, not entitled to recover interest on his claim at the rate of twenty-five per cent per annum.

We are of the opinion that the demurrer in this case was not well taken, and the judgment of the district court is vacated and set aside, and the cause is remanded to the district court of Bernalillo county, to be there proceeded with, according to law.