(after stating the facts.)
The evidence is clear that the appellee and those under whom he claims had obtained title to the twelve ■acres awarded him in the judgment of the court, in the NW. corner of the NE. k of the NW. | of section 7, township 14 S., range 3 W.
1. Tax-sale void for want of notice. The tax titles relied upon by the appellee were void for want of notice of the tax-sale.
% No constructive possession under void tax-deed. Without actual possession by appellee, there was no possession by him, as constructive possession follows the title when there is no actual adverse possession— “¿tossessio -pedis." Gates v. Kelsey, 57 Ark. 523.
The appellant should have had a judgment for the recovery of the two tracts claimed by the appellee under the tax-purchases.
As to these pieces claimed under the tax-purchases, the judgment is reversed, and the cause remanded for a new trial. As to the other lands involved herein, the judgment of the circuit court is affirmed.
3. Limitation ofriand°soid The appellee received a tax-deed in the first instance, showing that the two pieces of land purchased by him were sold together, which would, of course, make the sale void. He afterwards received a deed for each tract, correcting the error in the first deed. The appellant contends that, the first deed being void upon its. face, the two years statute of limitations would not run in favor of one in possession under a tax purchase of which such a deed was sought to be made the evidence. In this we think the able and learned counsel for appellant are in error. In the case of Cofer v. Brooks, 20 Ark. 543, objection was urged to tax-deeds that, being void upon their faces, they could not afford any protection, under the five years special statute of limitation. Upon this question the court said: “It is insisted for the appellant, that the court below erred in admitting the tax-deeds offered in evidence by the appellee, because they failed to show regular and valid tax-sales, and were void etc. Without discussing the numerous objections made to the deeds, most of which are verbal criticisms, it may be conceded, for the purposes of this case, that their recitals fail to show regular and valid tax-sales, and that the deeds are void, yet it was competent for the appellee to introduce them, in connection with the evidence of his actual and continuous posssession of the land for the full period of limitation, to defeat the action of the appellant, as held in Elliott et al v. Pearce, (22 Ark. 508), at the present term. It is true, as stated by the counsel for appellant, that in Moore v. Brown, 14 McLean’s R. 211, Judge McLean held that a tax-deed void upon its face could not avail a person who sets. up a defense under the statute of limitations of Illinois. And the decision was sustained by a majority of the judges of the Supreme Court of the United States (S. C. 11 How. 414), Chief Justice Taney, Mr. Justice Catron and Mr. Justice Grier dissenting. But in Pillow v. Roberts, 13 How. 472, it was held that the decision referred to was based upon a construction of the statutes of Illinois, and that under our statute taxdeeds, even if irregular and worthless, are admissible in evidence, in connection with proof of possession, in order to establish a defense.”
The statute under consideration in the case at bar is section 4475 of Mansf. Dig. (sec. 4819, Sand. & H. Dig.), and is as follows: “No action for the recovery of any lands, or for the possession thereof against any person or persons, their heirs or assigns, who may hold such lands by virtue of a purchase thereof at a sale by the collector, or commissioner of State lands, for the nonpayment of taxes, or who may have purchased the same from the State, by virtue of any act providing for the sale of lands forfeited to the State for the non-payment of taxes, or who may hold such lands under a donation deed from the State, shall be maintained, unless it appear that the plaintiff, his ancestor, predecessor or grantor, was seized or possessed of the lands within two years next before the commencement of such suit or action.”
In discussing this statute in Gates v. Kelsey, 57 Ark. 526, this court said, through Judge Battle: “In the States where the statutes of limitations require actions to be brought within a certain time after a particular act, as the day of sale or record, the statutes are generally held to commence running, if they have any effect, according to their words. Kessinger v. Wilson, 53 Ark. 406, 410. Under all other statutes the period of limitation begins at the time the cause of action accrues ; and as to land it does not accrue until there is an adverse possession. The rightful owner is deemed to be in possession until he is ousted or disseized. Possession follows the title, in the absence of any actual possession adverse to it. Ringo v. Woodruff, 43 Ark. 485; Bradley v. West, 60 Mo. 40; Clarke v. Courtney, 5 Pet. 319; Peyton v. Smith, id. 493; Barrett v. Love, 48 Iowa, 115.” Referring to the statute, the opinion proceeds: " No date, as the day of sale or record, is specified from which it must run. There is only one fact mentioned in it which can defeat the recovery of land illegally sold for taxes, and that is the fact that the plaintiff, his ancestor, predecessor or grantor was not seeized or possessed of the lands in question within two years next before the commencement of such suit or action. The statute necessarily implies that, if he was seized or possessed within the two years, he can recover. In other words it makes the disseizure and dispossession of the true owner for two consecutive years a bar. It is the only fact, under the statute, which can defeat him in an action to recover. There is nothing in the statute which constitutes any act a disseizin. The general rule governs, and possession follows the title. There is only one way in which he can be disseized or dispossessed by an illegal sale for taxes, and that is (by) adverse possession. Two years adverse possession is, therefore, necessary to constitute a bar under the two years statute.” It will be perceived that it follows from this case that it is the two years adverse possession only under a purchase of lands sold for taxes that bars the action for recovery, and that the statute begins to run from the time when there is a disseizure and dispossession of the true owner, which, of course, cannot commence until the period for redemption expires, and that the bar of statute was complete if two years elapsed before suit, whether the tax-deeds under which the lands were claimed were void upon their faces or not, and we so hold. While the determination of this question, though presented in the case, was not necessary to the decision of the case, we thought it proper to decide it now, in view of a new trial in the court below.
Wood, J., being disqualified, did not sit in this case.