ON REHEARING.
Bunn, C. J.The appellants are the heirs at law of Joseph Thomas, deceased, who, it is alleged, was the original owner of the lands in controversy.
The appellee, R. A. Farris, claims title by having purchased the lands as forfeited lands from the state, and as holder of the state’s deed in furtherance of said purchase, and pleads the various statutes of limitations against the claim of the appellants, who instituted this suit against him and his wife in ejectment.
The plaintiffs excepted to the state’s deed, because of irregularities in the assessment and forfeiture of the lands to the state upon the title to the lands in the state is founded.
On the trial, the circuit court found for the defendant on the issue of the two years’ statute of limitation and adverse possession, as set out in the answer. The defendant’s adverse possession began under a donation certificate, and thus was surrendered to the state under section 4583 of Sand. & H. Dig., and on the 14th of December, 1894, defendant purchased the same from the state, and received his deed in due form. There was no change in the possession. The suit was instituted in November, 1897, more than two years after the date of the deed.
On appeal this court affirmed the judgment of the circuit court, and now this cause comes up on a motion for rehearing, and a request for oral argument. The only question presented on the motion is whether or not the possession of appellees was adverse and extended to all the land described in the deed under which the appellants claim, the appellants claiming that the possession of the appellees only extend to their actual possession, their enclosure, and the appellees claiming that the constructive possession, under even a void tax sale and deed, of a purchaser extends to all the land mentioned in his deed, if he has actual possession of any.
There is no claim that the' appellants had actual possession of any of the land during the running of the two years.
It has, in one or more, cases, been held by this court that in such cases, where the owner and tax purchaser both held actual possession of lands sold for taxes, the latter having actual possession of part, and the former of the remainder, and where the tax deed was void, then in such case the holder of the tax deed held the possession only so far as his actual possession extended, because, the owner having possession also of the remainder, his constructive possession of the whole under the description in his deed was superior to the constructive possession of the purchaser holding under a defective deed. But this rule does not pertain where the actual possession is not divided between the two, for the void deed in such case indicates the possessory claim of the holder thereof, and all the world must take notice thereof, and such is the essence of adverse possession.
The petition for oral argument is denied, and the motion for rehearing is overruled.