Irving sued Brownell in an action of ejectment, to recover the north-west quarter of section twenty-eight, township four south, range six west of the fourth principal meridian, situate in the county of Pike.
The declaration was served January 18, 1848. The plaintiff traced title to the premises from the United States to himself, and the defendant admitted that he was in possession of the south fifty-two acres of said land, at the time the action was commenced.
The defendant then offered in evidence an Auditor’s deed of the land in question to William Ross, dated January 20, 1829, and reciting a sale of the land January 8, 1827, for the taxes of 1825 and 1826; also a deed from William Ross to Henry Staunton, for the same land, dated May 12, 1836 ; also a deed from Henry Staunton to Jacob Ford and Isaac Ford, for the same land, dated March 8, 1837; also a deed from Isaac Ford to himself, for an undivided half of said land, dated January 28, 1889. The defendant also offered in evidence receipts for the payment of taxes upon the land claimed, for the years 1839, 1840, 1841, 1842, 1843 and 1845, and gave evidence of the purchase bjr him of the south fifty-two acres of said quarter section, for the taxes of 1844.
All the foregoing evidence offered by defendant, was objected to by the plaintiff, but admitted by the Court. It was further in evidence, that the defendant cut timber, dug a well, and took shingles and boards to build a house upon the south fifty-two acres, in the fall of 1840 ; that he erected a house and removed upon said land in the spring of 1841, and has resided thereon ever since. The plaintiff gave in evidence a redemption by him from the tax sale of 1844, and a receipt for the payment of taxes for the year 1846. The Court, at the instance of the defendant, gave various instructions to the jury, all of which were excepted to by the plaintiff at the time. The jury found the defendant not guilty. A motion for a new trial was then made and overruled, and judgment entered against the plaintiff for costs. Numerous errors have been assigned upon this record.
It is assigned for error, that the Auditor’s deed was improperly admitted in evidence, without proof of the signature of the Auditor thereto, and without proof of the prerequisites of the law preliminary to the tax sale haring been complied with. It has several times been decided by this Court, that no proof of the execution of an Auditor’s deed is necessary, to entitle it to be read in evidence, and we are not disposed, at this time, to reinvestigate that question, or the reasons which led the Court originally to make such a decision. Graves vs. Bruen, 1 Gil., 167; Rhinehart vs. Schuyler, 2 Gil., 523; Thompson vs. Schuyler, 2 Gil., 280. As to the other question involved in this assignment of error, it is clear that, for the purpose of showing a complete title in Ross, the Auditor’s deed was inadmissahle, without proof that the prerequisites of the law authorizing the sale for taxes had been complied with. This very point was decided in the case of Hill vs. Leonard, 4 Scam., 141, where the Court say that, “ to render the Auditor’s deed to land, made in pursuance of a sale for taxes, under the law in force in 1827, evidence of title to the land, it is incumbent upon the party offering it to show the authority of the Auditor to make it, by showing the land liable to sale, and performance by him of all the preliminary acts required by law.” The reasons for this decision are satisfactorily given in the case itself, and in that of Garrett vs. Wiggins, 1 Scam., 335, to which it refers. But although the Auditor’s deed should be held of itself insufficient to show title in the grantee, it is insisted by the defendant, that it furnishes such color of title, as will authorize the defendant to protect himself under it, by showing that he has been in the actual possession of the land, claiming under said deed for seven years, and has paid all the taxes assessed thereon during that time.
This brings us to a consideration of the first section of the act of March 2, 1839, entitled “An act to quiet possessions and confirm titles to land ; ” which is to be found incorporated into the Revised Statutes, ch. 24, sec. 8. So much of that section as is under consideration, reads as follows : “ That hereafter, every person in the actual possession of land or tenements, under claim and color of title made in good faith, and who shall, for seven successive years after the passage of this act, continue in such possession, and shall, also, during said time, pay all taxes legally assessed on such land or tenements, shall be held and adjudged to be the legal owner of said lands or tenements, to the extent and according to thepurport of his or her paper title.” The object of this statute clearly was to protect those who, supposing that they had a good title to land, should take and continue the actual possession thereof, and pay taxes upon the same for the space of seven years.
Three things are necessary, and must concur, to enable a party to avail himself of this statute : 1. He must have a claim and color of title to the land made in good faith. 2. He must have and continue in the actual possession thereof, for seven successive years. 3. He must pay all taxes legally assessed upon said land, during the said seven years.
What the claim and color of title must be, that will enable a party to take advantage of this statute, is a question of some difficult}’. Under our twenty year limitation act, and under similar statutes, in other states, and in England, it has been uniformly held, that a person relying upon his possession to defeat a recovery by the party having the legal title, must show that his possession had been adverse: that is, under claim of title, although the statutes are silent as to the character of the possession necessary to bar a recovery in such a case. It would seem, therefore, that the Legislature intended to require a different sort of title to protect a party claiming under the seven year law from what had been required under the limitation act of twenty years, else why require that claim and color of title, made in good faith, should be essential to protect a party claiming under the former act. We are bound to give these words some meaning, and they will have none if the same construction is to be put upon the act as if they were not in it. It is manifest that the Legislature only intended to protect those who had been in possession of land, and paying taxes upon it, under the belief that they had a good title. When would a reasonable man suppose that he had a claim and color of title to land, or what sort of a title would such a man, in good faith, pay out his money for P For none other, we imagine, than what he supposed to be a good title. If he knew that he was not acquiring such a title, or if the circumstances should be such that a reasonable man might know that the title he was obtaining was wholly defective, then it would not be a title acquired in good faith, and, consequently, not entitled to the protection of the act of 1839. By the words “ claim and color of title made in good faith,” must, therefore, be understood such a title as, tested by itself, would appear to be good—not a paramount title, capable of resisting all others, but such an one as would authorize the recovery of the land when unattacked, as no better title was shown: that is, a prima fade title. Such a title, connected with seven years actual possession and payment of taxes, becomes invincible. The Auditor’s deed offered in evidence in this case, as has already been shown, was not such a title as, unaccompanied with other proof, it did not afford prima fade evidence of title, and it was not, therefore, admissible in evidence, for the purpose of showing claim and color of title under the act of 1839. But even if the Auditor’s deed were held to be such a claim and color of title as the statute intended, still it would not avail the defendant, for the reason that the evidence does not show that he had actual possession of the premises in dispute, for seven successive years, previous to the commencement of the action; nor does it show that he paid all taxes assessed upon the land during said seven years. The action was commenced January 18, 1848, and it appears from the evidence, that the defendant first took actual possession of the premises in the spring of 1841. It is true, that he cut timber, dug a well, and exercised some acts of ownership upon the land the fall previous, but those acts did not constitute that actual possession contemplated by the statute. As the Legislature, in reducing the time of possession, thought it expedient, as has already been shown, to require stricter proof of apparent title to the land than was requisite under the old limitation of twenty years, so also, and for the same reason, they have thought proper to require that the possession under the act of 1839, should be more open, marked and manifest, than under the former law. It would be unreasonable, when the Legislature have used language clearly manifesting a different intention as to the character of the possession requisite under the two acts, to give the same liberal construction to both. The Legislature, undoubtedly, meant what they have said, that the possession must be actual: that is, visible, open and exclusive, either by an enclosure, the erection of buildings, or in some other way, actually appropriating and using the land, in such an open, visible manner, as to give the real owner notice that the person in possession was occupying and claiming the land as his own.
The defendant is equally at fault, in his attempt to show payment of taxes upon the land, as required by the law. The statute requires that the person in possession should pay all taxes legally assessed upon the land, during the seven successive years that he has possession. A payment of taxes for seven years, part before and part after possession taken,, does not answer the requirement of the law. In this case, it is not pretended that possession was taken before the fall of 1840, and there was no evidence of the payment of taxes by the defendant, after the year 1845. The taxes of 1844 he did not pay, but suffered the land to go to sale, and then purchased it in ; which he insists was a payment of the taxes of that year. This is not so. The land was made to pay the taxes by the sale, not the defendant. He cannot claim that he paid the taxes, while he, also, at the same time, took the chance of getting a tax title upon the land. It is only lands upon which taxes are not paid that can be sold. In no view of the case did the defendant put himself in a situation to have the benefit of the act of March 2, 1839. There is, however, another act, passed January 17, 1835, under the second section of which (which is to be found in Revised Statutes, ch. 66, sections 8, 9 and 10,) the Auditor’s deed was admissible in evidence. The act of 1835 does not, like that of 1839, require that the person who would avail himself of its provisions, should have a claim and color of title to the land, made in good faith, but it simply requires that he should have “ a connected title in law or equity, deduciblc of record, from this state or the United States, or from any public officer, or other person authorized by the laws of the state to sell such land for the non-payment of taxes,” &c. The Auditor’s deed in this case is just such a title. On its face, it is perfect and complete. No objection can be taken to its form, and if the prerequisites to the sale of the land by the Auditor were shown, it would, of itself, constitute a perfect and complete title to the land ; and, without proof of these prerequisites, it is a sufficient title to protect any one 'who can connect himself with it, and show that he has be'en possessed of the premises by actual residence thereon, under such title, for seven years. If this were not so, the statute would have no meaning; for to require a party in such a case as this, to show that the prerequisites to the sale for taxes by the Auditor had been complied with previous to such sale, would be to require Him to make out a perfect title, under the tax deed; and in that event, he would have no need to resort to proof of possession to protect him in the enjoyment of the land. His title would be paramount to any other without possession, and the act passed to protect him in his possession would be perfectly nugatory. The word “ title,55 as used in the act of 1835, should not, therefore, be construed to mean a perfect title, nor is the word, in its ordinary acceptation, understood in such a restricted sense. There are perfect titles and apparent or imperfect titles. Even a naked possession constitutes a species of title, though it may be the lowest degree. The meaning of the word is, therefore, to be ascertained from the connection in which it is used, and there can be no question, when the whole act of 1835 is examined, that the Legislature never intended by the term “ connected title55 a perfect and complete title. The ■title contemplated can mean nothing more than such a title as is evidenced by a deed in proper form, and duly executed by one of the officers or persons named in the act, as the source with which the person relying upon it is required to connect himself, by a regular chain of conveyances.
It appears from the evidence, however, that the defendant had not been possessed of the premises in question by actual residence thereon for seven years, when this action was commenced; he was not, therefore, in a situation to claim the protection of the act of 1835.
As this case will have to be remanded, to afford the defendant an opportunity to supply, if he can, the necessary evidence to support his case, we will now notice the objections taken to the introduction in evidence of the chain of title from Ross to the defendant. The first objection to two of these deeds was, that certified copies were offered and admitted in evidence, without sufficiently accounting for the non-production of the originals. The statute declares, that when it shall appear to the satisfaction of the Court that the original deed is not in the power of the party wishing to use it, a transcript of the record thereof, certified by the recorder, may be read in evidence. Revised Statutes, 108, sec. 25. Under this statute, and the decisions of this Court, the defendant laid a sufficient foundation for the introduction in evidence of the copies. The objection to the certificate of acknowledgment upon the deed from Ross to Staunton, that it does not show of what county the officer taking the acknowledgment was a justice of the peace, is untenable. It appears from the record that Campbell, who made the certificate, was called as a witness, and testified that he was a justice of the peace of Pike count}1, at the time he took the acknowledgment. But without this proof, the certificate was sufficient, as the Court, when sitting in Pike county, would officially take notice who were the justices of the county, without any proof thereof. Shattuck vs. The People, 4 Scam., 481.
The objection to the certificate of acknowledgment upon the other deeds, that they were taken before a commissioner in the state of New York, who affixed no seal to his certificate, and of whose official character there was no sufficient evidence, as also that one of the acknowledgments was not dated, were all properly overruled. It has been decided, in the cases of Vance vs. Schuyler, 1 Gil., 160, and Thompson vs. Schuyler, 2 Gil., 271, that “no certificate of the official character of a commissioner in another state, before whom the acknowledgment of a deed is taken, need be produced.” The statute does not require that the certificate of acknowledgment made by a commissioner of another state, should be under seal, and if the acknowledgment was sufficient, when the deed was offered in evidence, the want of a date to the certificate would not vitiate it.
It is unnecessary to pass separately upon the numerous errors assigned, as they are all substantially disposed of, by the construction which is put upon the limitation acts of 1835 and 1839.
The judgment of the Circuit Court is reversed, and the cause remanded.
Judgment reversed.