(after stating the facts.) This is an action of ejectment where both parties claim under tax deeds which are admitted to be void on account of the sale being made for a greater sum than the law allowed. But the court decided the case in favor of the plaintiff on the ground that under the statute the defendant had no right to question the validity of the tax deed under which the plaintiff claimed. The statute under which the court based its decision is as follows:
“But no person shall be permitted to question the title acquired by a deed of the county clerk, without first showing that he, or the person under whom he claims title to the property, had title thereto at the time of the sale, or that title was obtained from the United S'tates or this State after the sale.” Kirby’s Digest, § 7105.
Now, it is evident that, if this statute was intended to apply to a case of this kind, it would apply to both deeds, that of the defendant as well as to that of the plaintiff. If under this statute the defendant cannot question the title acquired by the plaintiff under his tax deed for the reason that he cannot show that “he or the person under whom he claims title to the property had title thereto at the time of the sale,” it would be equally true that for the same reason the plaintiff could not question the title of the defendant under his tax deed; for, by the agreed statement of facts, the tax sale under which plaintiff claims was void for the reason that the sale was made for more taxes 'than was due. But the statute says, as before stated, that to entitle him to question the title acquired by the deed he must first show that he had title to the land at the time of the sale. It will be noticed that he must show not only a deed but title, and, the deed being void, its production did not show title. As neither of these parties had title at the time of the tax sale at which the other claims, it would follow under this statute that neither could question the title of the other. If, then, we assume that both tax deeds were based on sales that were regular, the ,last sale would cut off the title acquired by the first, and the title would be in the defendant.
Again, it is clear that if at the tax sale under which defendant holds there had been no bidders for this land, and it had been forfeited to the State for nonpayment of taxes, and if at the expiration of the time for redemption it had been purchased by the defendant directly from the State, then the defendant would have been within the exception to the statute which allows those acquiring title from the State after the tax sale to contest the validity of the sale. And we are also inclined to think that if this statute applies in favor of one tax title against another, the defendant, by virtue of his purchase at the sale under the laws of the State for collection of taxes, was a purchaser from the State, within the meaning of the act, and within the exception of the statute.
This statute was passed for the protection of parties holding land under tax titles, and was intended to cure defects in such titles as against those having no interest in the land at the time of the sale. But, as it was passed to strengthen such titles, we do not think that it was intended to apply in case of conflicting tax titles. As to such titles, when both are invalid, the position of the defendant in possession of the land is superior to that of the' plaintiff. "It follows, therefore, that, -in our opinion, under the agreed state of facts, the judgment should have been in favor of the defendant. The judgment is therefore reversed, and the cause remanded, with an order that the circuit court enter judgment for the defendant.