The same question is raised in each case. Plaintiffs rely for recovery upon color of title, made in good faith, to vacant and unoccupied land, with the payment of taxes for seven successive years, under the provisions of the ninth section of the act concerning conveyances, as contained in the revised statutes of 1845, page 104.
That section provides that, “ whenever a person, having color of title, made in good faith, to vacant and unoccupied land, shall pay all taxes legally assessed thereon for seven successive years, he or she shall be deemed and adjudged to be the legal owner of said vacant and unoccupied land, to the extent and according to the purport of his or her paper title.” Persons taking, by purchase, devise or descent, may complete term of seven years by adding their own payments and time to their vendor, devisor or ancestor, so as to complete the period, with jproviso that the person having a better paper title may defeat the title so provided, by paying the taxes assessed on the land for one or more years. The tenth section allows persons, under disabilities of infancy, insanity, imprisonment, coverture and absence, etc., to refund the taxes so paid, with interest, at twelve per cent, per annum, within three years after the removal of disabilities.
There is hardly a feature of an act of limitation discernible in these provisions, unless it be the saving of rights to infancy, etc. Stripped of this, and it stands a naked, bold provision for the transfer of the land of one to another, and his investiture of the paramount title thereof, as against the owner and all others, upon condition that he, having color of title thereto, made in good faith, shall pay all taxes legally assessed thereon for seven successive years.
We are unable to find warrant in the constitution for such an exercise of legislative power. The legislature may make the public dues a lien upon property, and subject it to sale for them payment, and authorize the state to become the purchaser, in default of others; but the power to declare a forfeiture of estates for non-payment of taxes, or make their payment for one or more years evidence of paramount title, as between contesting claimants to land, is one of altogether questionable authority. The chance given the owner of the “ better paper title” to defeat his weaker adversary, by paying the taxes one year in seven, was barely a chance in a race to the collector, who was not, in 1839, when this act passed, authorized to receive but one payment of taxes. He was, afterward, directed to receive taxes from all claimants, and then could suffer the penalty for negligence alone. But this could not legalize such a legislative transfer of property, from the owner of “ a better paper title” to the “ person having color of title” only, whether in the sense of a sale on these terms, without judgment, advertisement or biddings, or in that of a judicial determination of right between adverse claimants. But the provision is not a revenue measure for the collection of taxes, and could not be sustained as such, if it were. As originally passed, it was “ An act to quiet possessions and confirm titles to land.” The first section (see Acts 1838-9, p. 266) was an act of limitation, and has -been sustained as an act to quiet possession (Woodward v. Blanchard, 16 Ill. R. 424), as it operated through and upon the possession, protecting that against the entry or action of the true owner, if under no disability, after the lapse of seven years; and against those under disability, if they did not commence their action within three years after removal of disability.
How statutes of limitation invariably work upon the basis of a possession. Wah v. Sherman et al., 8 Serg. and Raw. R. 359-369 (overruling Parish et al. v. Stevens, 3 Serg. and Raw. R. 298); Cranmer v. Hall, 4 Watts and Serg. R. 36 ; Bigler v. Karns, ibid. 138; McCall v. Himebaugh, ibid. 164 ; Bayard v. Inglis, 5 ibid. 465, and the instances of exception are very few, and confined to special cases. The prototype is found in the common law prescription, which, from lapse of time, raised the presumption of right, title, and even of grant or conveyances, when necessary to sustain it.
Although such statutes, in phraseology, only bar the right of action or remedy, yet, in effect, they confer on the possessor a right of property. Angelí on Limit, p. 18. But statutes of limitation may not only bar the remedy, but also confer a corresponding right on the opposite party, as a direct consequence ana effect. Beckford et al. v. Wade, 17 Ves. Jr. R. 87, and note a. And this distinction has been taken and sustained as constitutional. Townsend v. Jamison, 9 How. U. S. R. 413, 416-420; Stokes v. Berry, 2 Salk. R. 421; Reading v. Royston, ibid. 423, and note a; Fisher v. Prosser, Cowp. R. 218.
I take no exception to the declaration in the act, that a right shall arise upon a fixed term of possession, and that all actions shall be barred from disturbing it. The objection is that the act attempts to act upon the paper titles, abstractly, without regard to a possessing title, which ever has been the title intended to be aided and protected by such statutes. Even the statute of Jamaica, which was cited on the argument as an instance of acting upon, declaring and confirming the right absolutely, did not so act, simply upon the right, but through the possessory title. 17 Y es. Jr. E. 87 and note a. So the construction of the act of Pennsylvania of 1804, in relation to sale of unseated lands for taxes, although literally dispensing with possession, was construed as intended only to operate from the time possession was taken.
It is true that, by subsequent act of 1824, the limitation is expressly made to run from the day of sale for taxes of unseated or vacant land, but the act provides that an action shall lie against the purchaser, though not in possession. Robb v. Bowen, 9 Penn. State R. 71. Thus the principle is fully recognized, that before an owner can be barred of his right, or remedy, a complete right of aótion must exist. It may be the legislature can change all real actions into personal ones, and require them to be brought against the claimant of land, upon his setting up or malting claim, within a given period, or that all right and remedy shall be lost. It seems to have been carried quite to this extent in the case of Robb v. Bowen. The case is distinguishable from Shaenburger v. Becht, 5 Watts R. 194. The statute provided for a trial or hearing of conflicting claims for patents, before a board of property. The losing party was required to bring his action within six months, if dissatisfied with their decision. This he was authorized to do, whether the opposite party was in possession or hot. Itwas equivalent to an appeal. Ibid. 196.
We have been referred to another act of limitation in Hew York, as strongly analogous, and in support of the constitutionality of the ninth section under consideration. But like the Pennsylvania acts referred to, is special, peculiar, and distinguishable from this act of ours, and from general acts of limitations.
Tire act was to settle disputes to the military lands in the county of Onondaga. For that purpose a commission, in the nature of an arbitration, was provided. The award was final, unless the party filed a dissent within two years, and if not in possession, bring his action within three years after the award. Here again it is perceptible that it is in the nature of an appeal from a decision that wifi otherwise be final, though it is not directly from the award, but partly from it by filing a dissent, and partly independent, by bringing a separate action. Yet this action need not be brought unless the opposite party is in possession. Jackson v. Huntley, 5 John. R. 59; Jackson v. McKee, 8 ibid. 429 ; Jackson v. Root, 18 ibid. 75; Jackson v. Lamphire, 3 Pet. R. 287. For the purposes of settling the rights of the parties under the act, the party dissenting was to be deemed to be in possession, and the other party must bring his suit against him. Take it altogether, and such was a certain prescribed mode of trial, to end a particular class of disputed titles. Hothing, I conceive, can be drawn therefrom, in aid of such a general provision, not to bar remedies, or try or end disputes and conflicting claims of titles; but rather for the transfer of title, upon performance of certain conditions "without notice, hearing or trial, on behalf of the owner of the better paper title.
If the legislature may do this, I am unable to see why they may not transfer my property upon the performance of other prescribed conditions or required acts.
They may not give my property to the first man who will pay the taxes upon it, with or without my default. Halted powers must be strictly executed according to prescribed powers and modes. Such are sales for the non-payment of taxes. The party claiming is not deemed to be in possession for the purposes of a suit, nor will an action lie for making claim to the land. There is no apparent remedy by action against this adversary, claimant and tax-payer; and yet the paramount title may be overthrown and the land transferred, to one “deemed and adjudged to be the legal owner of said vacant and occupied lands, according to the purport of his or her paper title.”
We find no act of legislation like this, nor any decision strongly analogous. The strongest is the get of 1824, of Pennsylvania, and the case of Robb v. Bowen; but that act authorized an action against the purchaser, without possession. We need not say, whether the legislature of Illinois could pass such an act as that of Pennsylvania of 1824,| but we have been called on in this case, and have been compelled to hold that there is no power under the constitution to provide for the transfer of title from one to another claimant, jupón the conditions and under the circumstances in the act mentioned. We need not, and will not discuss the statutes of limitations, which operate as bars for protection of possession. Hor need we anticipate what construction may be yet put upon some, which do not literally imply a possession. In Pillow v. Roberts, 13 How. U. S. R. 477, the court expressly waive the consideration of the point, whether the legislature of Arkansas intended that the action should be barred in five years, where the purchaser at the tax sale was not in possession. In that case he had had five years’ possession, which was sufficient, without resort to the literal terms of the act.
The many cases referred to on the argument, were cases of actual possession, and which can therefore throw little light upon this as a question of power.
Judgment affirmed in the first named case, and reversed in the other, and the cause remanded.