On Re-heabing.
Wheeler, J.After the opinion was delivered, our atten - *649tion was called to the fact, not adverted to on the argument, that one of the five tax receipts in evidence was for the taxes for the year 1854, in which year the suit was brought; and that there was no evidence of payment for the year 1849, the first of the five next before suit.
It may well be questioned whether the evidence was not sufficient to warrant the jury in finding that the taxes had been paid, as well for the year 1849 as for the five succeeding years. There was evidence of the assessment of the land for the years 1847, 1848 and 1849, and receipts showing the payment of taxes for the five succeeding years; from which it would seem not an unreasonable inference that the taxes had been paid for the year 1849. Be that as it may, we think the defendant protected by the limitation of three years. The certificate upon which the patent issued, under which the defendant holds, was issued in 1838; his survey was made in 1846, and he has been in actual possession since the fall of that year, having received a conveyance in 1847. The patent is prima facie evidence that the genuineness of the certificate-had been duly established, and that it was valid from its date. It devolved on the plaintiff to prove that it had not been established in any of the inodes known to the law. This his evidence, if admitted, would not have proved. The evidence of the confirmation, or validation of the certificate may have existed, and doubtless did exist, in the General Land Office. It could not have been pronounced that it did not exist, without proof that it could not be found in that office. No such evidence was proposed. The defendant therefore appears to have been in possession, under color of title, for a period of more than three years before the commencement of the suit;
and there was no evidence proposed which could have had the effect to repel this conclusion. We therefore must adhere to the opinion that the defendant was entitled to judgment on his defence of the Statute of Limitations.