delivered the opinion of the court.
The writ of error in this case is directed against the same judgment as that in which the decision has been made at the present term in Scott vs. Pleasants, but the writ is sued out by Ihe defendants below to reverse the judgment obtained by the plaintiffs below: the plaintiffs in error in this case, complaining that the east half of fractional section 12, and north-west fractional quarter ,of section 13, towu 1 south, range 11 west, were recovered by the defendants in error on account of the erroneous exclusion of their evidence by the Circuit Court, which evidence, they allege, wmuld have shown them to be entitled to the lands, or was permissible to explain their possession, its character and extent, or to enable their possession, as held under a conveyance in writing, to ripen into an absolute right, though the conveyance in itself might be worthless and void.
The defendants below, to resist the plaintiffs’recovery of the lands in the east half of section 12 and in section 13, offered to read in evidence a collector’s deed, executed by James Lawson, jr., sheriff and collector of Pulaski county, made the 9th December, 1843, reciting a tax sale of the lands in question, made upon the 1st November, 1841.
The introduction of this deed was objected to by the plaintiffs below, and the objection was sustained, on the ground that the deed was fraudulent and void.
Wherein the deed was fraudulent, is not apparent upon its face, and has not been shown in this court by the defendants in error. Some objection there may be to the deed, as not containing sufficient recitals to show an exact compliance with the requirements of the revenue law in the condemnation and sale of the lands, but we are not prepared to hold, upon the showing made before us, that there are such defects in the deed as to require it to be treated as a fraudulent instrument, or as witnessing a fraudulent transaction.
And if a tax deed be declared void because it does not show that every thing has been done that the law directs to be done by the assessor, by the County Court, or its clerk, and by the collector, in the assessment, levy and collection of taxes, our statutory regulations, concerning the effect of tax deeds, and the principles of interpretation to be applied to them, would not only be disregarded, but positively violated.
The deed offered seems to fall within the description of a collector’s deed admissible in evidence, as given in Pillow vs. Roberts, 7 Eng. 827. It was executed by a collector of the revenue, acknowledged and recorded, for land assessed and sold for taxes, and if it fail to show a compliance with legal requisites, as, for instance, showing that the sale was made upon the first day, and not upon the first Monday of November, it does not, as the deed in Hogan vs. Brashears, 13 Ark. 251, did, show an actual violation of law.
The main objection to the deed seems to be, that the lands mentioned in it were assessed and sold as the property of Daniel Ringo, a person of the same name as the grantee of the tax deed, becoming so by an assignment of the certificate of the purchase from Luke E. Barber, purchaser at the sale.
Assuming the defaulting tax-payer and the grantee in the deed to be the same, as may be held upon the authority of McNamee vs. The United States, 6 Eng. 150, and that the sale to Barber, and assignment of the certificate of purchase to Ringo, and his acceptance of the deed from the collector, must be held to be as if the sale was made directly to Ringo, Voris vs. Thomas, 12 Ill. Rep. 445, yet it would not follow that the deed was fraudulent; for, although Ringo could not acquire a title by his own default of payment of taxes, whether the sale was made to himself directly, or indirectly, as in this case, yet the lands may have been illegally, and without any agency of his own, taxed to him.
If he had been a former owner of the lands, a tenant of them with agreement that the landlord should pay the taxes, or if taxed to him without legal cause, cir consent of Ringo, he was not precluded from buying the lands. And, generally, where the deed is regular, but for the objection under consideration, it should not be excluded.
The deed of Lawson to Ringo should have been allowed to go to the jury, and, when read, the plaintiffs below could show that Ringo occupied such a position as required him to pay the taxes, and not have the benefit of a title resting upon his own default. Blackwell on Tax Tilles, 471; Blakely vs. Bestor, 13 Ill. R. 714.
It is also very clear that, irrespective of the regularity or goodness of the deed, the defendants below might read it in evidence, coupled with proof of possession that would be sufficient under any statute of limitations to bar an action for the lands. Pillow vs. Roberts, 7 Eng. 829; Elliott vs. Pearce, 20 Ark. 516; Gofer vs. Brooks, Ib. 546.
The second, twelfth and thirteenth instructions of the defendants below, respecting the limitations of three and five years, were properly refused, as affecting the lands now in controversy, as the deed to Ringo being excluded, there was no evidence that the lands had been sold for taxes. The instructions tvere based on rejected, not on admitted, testimony.
The judgment is reversed, with instructions that the case in the Pulaski Circuit Court stand anew for trial as to the east half of fractional section 12, and north-west fractional quarter of section 13, township 1 south, 11 west.