delivered the opinion of the court.
The amended petition states that, at the July term, 1873, of the St. Louis County Court, a judgment was obtained in favor of the state against a certain described lot of ground in the city of St. Louis, for the sum of $161.24, being the amount of the taxes assessed against the same for the year 1872, with the penalties, interest, and costs; that on November 13, 1873, the collector of said county, by virtue of a special execution duly issued on said judgment, and ■dated July 21, 1873, exposed the land in question for sale in. satisfaction of the judgment, in accordance with the statute; that the land was thereupon forfeited to the state for want of bidders; that, on February 27, 1874, N. D. Allen paid to the collector, on the order of the clerk of the county court, the sum aforesaid, for all* of said tract of land; that, on April 20, 1876, the collector executed to Allen, in due form, a tax-deed for the property, and that Allen, on January 15, 1880, conveyed to the plaintiff by deed, all his right and title to said land, in fee ; that from the date of said judgment of the county court until now, defendants are interested in the land in question, that is to say, the defendant Laumeier claims to own the land in fee, and his co-defendants are his tenants in possession ; and, that from *548the date of said judgment the defendants have held, and still hold, possession of the land; that from January 15, 1880, to the date of suit, plaintiff, by virtue of the tax-deed and the deed of Allen, has been, and is, entitled to possession, and that defendants, on January 16, 1880, unlawfully entered into possession, and hold the same, to plaintiff’s damage, etc. Judgment is asked for possession, and the monthly rents and profits, or, if it should be determined that plaintiff is not entitled to recover possession under the tax-deed, then that defendants, as successful claimants of the land, may be adjudged to pay to plaintiff the said sum of $161.24, paid bjr Allen to the collector, with a further sum equal thereto as redemption-money, and interest on the whole at ten per cent from February 27, 1874, and that the interest of defendants in the land be sold for satisfaction of the same.
The answer denies each and every allegation in the petition, specially excepting that defendant Laumeier is the owner of the land, and that the other defendants are in possession thereof, and have been ever since this action was brought. The answer then proceeds to aver with due particularity the successive steps whereby the same land was forfeited and sold by the collector of revenue for the taxes of 1873, and that defendant Laumeier became the purchaser, whereupon the collector, on October 11, 1878, executed and delivered to him in due form, a tax-deed conveying the said land and vesting the same in said defendant. The plaintiff replied, admitting the defendant’s possession ever since the action was brought, and denying all the other allegations in the answer.
On the trial, the plaintiff introduced testimony tending to prove all the preliminary proceedings for establishing his tax-title, as alleged in the petition, but upon an offer to put in evidence his deed from the collector, this was objected to by the defendants, and the court excluded it from the testimony. The record does not show the ground of the *549objection, or why it was sustained. The plaintiff introduced his deed from Allen, and no evidence was offered on the part of the defendants. The cause was dismissed as to all of the defendants, except Laumeier. Judgment was rendered against the plaintiff on his claim for possession, and in his favor for the purchase and redemption money, as demanded in the petition.
Section 220 of the revenue law of 1872 provides, that “if the holder of a tax-deed, or the party claiming under him by virtue of a tax-deed, be defeated in an action by or against him for the recovery of the land sold, the successful claimant shall be adjudged to pay such party claiming under the tax-deed, except in cases where the land was not subject to taxation, or the taxes for which the same was sold were paid before the sale, or it has been redeemed according to law, the full amount of all taxes paid by the tax-purchaser on such lands at the time of the purchase, and all subsequent taxes paid by him, together with the amount of the redemption-money provided for by the law, and interest on the whole amount of such taxes from the time of payment thereof, at the rate of ten per cent per annum ; which judgment shall be a lien upon the real estate in controversy, and may be enforced by execution as in other cases of judgments and decrees of such courts.” Adjd. Sess. Acts 1871, p. 129.
The defendant argues that this statutory provision was never intended to apply to a contest like the present, between two successive purchasers of tax-titles to the same land. The position may be strongly maintained, on reasonable grounds. Section 223 of the same act provides thus : “Any person hereafter putting a tax-deed on record in the proper county shall be deemed to have set up such a title to the land described therein as shall enable the party claiming to own the same land to maintain an action for the recovery of the possession thereof against the grantee in the deed, or any person claiming under him, whether such grantee or *550person is m actual possession of the land or not.” Under this law.the present defendant, or any one claiming under him, might sue the plaintiff, whose tax-deed was put on record in the proper county, and recover, if not the possession, the amount of his purchase-money, doubled, with interest, etc., against the plaintiff, as the plaintiff has done against him in this proceeding. Thus, if for( any reason neither could recover the possession, each would have a money demand of like amount against the other, and neither would be the gainer by his purchase. More than this, the present defendant might recover against the plaintiff the whole amount of the purchase and redemption money under the second purchase, in a certain contingency, even though the plaintiff had never acquired possession, or any other benefit of his investment. These, and other absurdities which the legislature never intended, would necessarily follow, if we are to construe the words “ successful claimant” as applicable to the claimant under a subsequent tax-title. The whole tenor of the statute shows that the successful claimant, within its meaning, must be one who claims adversely to the governmental energy which undertakes to subject the land to the demands of the revenue. The holder of a tax-title which has ripened into the fee by actual possession, may be such a claimant, as against any subsequent tax-sale. He may thus be compelled to pay redemption-money to a later tax-purchaser who fails in'a suit for possession. But to say that the later purchaser may, by the mere fact of his purchase and ppssession under it, become liable for money paid by a former purchaser, under an older assessment, is more than the law ever intended. As to such older assessment, he is in no default, constructively or otherwise. An interpretation to such effect would make the whole proceeding, on the part of the state, a delusion and a snare.
But, however true these suggestions may be, the defendant, in the state of this record, can have no benefit of them. *551'The petition alleges possession and claim of ownership in the defendant, at and from the date of the county court judgment, which was antecedent to the plaintiff’s purchase. The answer admits ownership and possession, but avers .affirmatively that these have accrued since the plaintiff’s tax-purchase, and by virtue of a purchase under a later assessment. The burthen of proving the date and method of his acquisition was thus assumed by the defendant, but he ■offered no evidence whatever. Upon the face of the record, therefore, his ownership and possession were as averred in the petition, and he can' claim no benefit of the position of subsequent tax-purchaser, which he alleged, but failed to prove. Counsel say in argument, that the court below took the answer as true. We find no evidence of this in the record, nor any reason why the court should have done so. A reply put the allegations in issue. The admission of a possession in defendant since the commencement of the ■suit, did not negative a possession prior thereto, as averred in the petition. The defendant was therefore properly regarded as a prior claimant against the plaintiff’s tax-title, on the face of the record, and subject to all the responsibilities of that position.
We are unable, nevertheless, to reconcile the judgment rendered with the facts before the court. The court excluded from evidence the tax-deed from the collector to Allen. It resulted that, as to the case before the court, no such deed was in existence. How was it possible for the court then to render judgment in favor of the plaintiff as “ holder of the tax-deed,” or as a “ party claiming under him by virtue of a tax-deed? ” There was no tax-deed in the case. There can be no recovery under the statute without one. No hint is given, in record or in brief, of the ground upon which the deed was excluded. It may have shown a forgery on its face, or some other patent defect •which made it worthless as a muniment of title, and which may not appear in the transcript. There being nothing *552whereby an appellate court can determine whether the-objection to the deed was well taken or not, the legal presumption must be in favor of the action of the court, and that the exclusion was proper. The plaintiff, having thus failed to show any claim under or by virtue of a tax-deed, as the statute stipulates, was no more entitled to a judgment for money, than to a judgment for possession.
The statute contemplates that the bona fide holder of a tax-deed may, from some cause not incLuded in the excepted contingencies, fail of a judgment for possession. This will entitle him to a money judgment. But, that he must first appear tobe “ the holder of a tax-depd, or the party claiming-under him by virtue of a tax-deed,” is indispensable in all cases.
All the judges concurring, the judgment is reversed and the cause remanded.