^ÁNOETwarranmíe ofdd:am-as" ^dSvendee?r This cause, being triable in equity by the first method, it comes before us for trial de novo, without regard to the decision of the court below, Blake v. Blake, 13 Iowa, 40. The evidence is before us on an agreed abstract, from which *75it appears that, on December 25, 1868, one G-. A. Calloway commenced suit, in the district court of Jones county, against S. A. Cook and A. C. Stickle, to set aside certain tax deeds held by them respectively upon the land in controversy. Such action was brought long after the plaintiff had purchased all of the interest of Stickle in the land; but neither Thomas nor Pitcher were made or became parties to the action. The defendant Pitcher went into possession of the land under a title bond assigned to the plaintiff by Cook, a party to the bond, and had never been disturbed in such possession. He paid the interest due on the bond to the plaintiff in November, 1867, and November, 1868. The money specified in the bond became due in November, 1869, at which time Pitcher caEed on the plaintiff and obtained an extension of time for payment. He then, without informing the plaintiff of what he was doing or intending to do, commenced negotiating with Cook, Stickle and the other parties to the suit, to effect a settlement of the Calloway claim and buy in his title. In this he succeeded, Calloway conveying to Cook and Cook to Pitcher.
This court held, in Baker v. Corbett's Adm'r, 28 Iowa, 317, that where a vendee, holding a contract for the conveyance of real estate, pays a part of the purchase-money and enters into possession of the premises under the vendor, and he afterward buys in an outstanding title, that of the vendor being defective, the measure of damages is the same as it- would have been had a warranty deed been executed by the grantor to the grantee, instead of a contract to convey title. And it is said, arguendo, in that case, that “ the bond executed by Allen, and the entry and possession under it by plaintiff as between the parties, operated as though Allen had executed to the plaintiff a warranty deed. * * * The plaintiff went into possession under Allen and acquired all the rights that Allen could have conferred by a warranty deed.”
*76Applying the principles and reasoning of that case to the one under consideration, we find that, in November, 1866, the defendant Pitcher went into possession of the land, under his contract for a conveyance thereof from Stickle. He has remained in undisturbed possession ever since that time. He consents to a conveyance by Stickle to the plaintiff, subject to his bond for a conveyance. During this time Pitcher purchases what he sets up as an outstanding title, paramount to that of the plaintiff. Now, had Pitcher been in possession under a warranty deed from the plaintiff, he would have had no right of action unless he had been evicted of the possession. Technically, an eviction is a lawful disturbance of possession or dispossession by judgment of law. 2 Hill, on Peal Prop. 404. An eviction by judgment of law is not, however, necessary. The party may voluntarily yield the possession to him who has the better title, or may purchase and hold it; and this is a sufficient ouster or disturbance to sustain an action on the covenant of warranty. Funk v. Creswell, 5 Iowa, 62, and cases cited; Hamilton v. Curtis, 4 Mass. 348; Sprague v. Baker, 17 id. 585.
But if he yields possession or buys in an outstanding title he does so at his peril. If the title to which he yields or which he buys is not good, he must stand the loss; and in either case, in an action against his warrantor, the burden of proof is upon him to show that the title purchased by him, or to which he yielded, was paramount to that of his grantor; although it is otherwise in ease of an eviction by force of a judgment at law, with notice of the suit to the warrantor. Hamilton v. Curtis, supra.
8írtatueon?mi tations. We proceed to inquire, therefore, whether the title purchased in by the defendant Pitcher was paramount to that ^at plaintiff? Could the grantors of Pitcher have successfully maintained an action against the plaintiff for the recovery of the land in dispute at the time Pitcher purchased in then titles ?
*77Calloway was the patentee of the land from the government. He conveyed to Cook who conveyed to Pitcher. The plaintiff’s title is based upon a tax deed executed and recorded November 25,1863, upon a sale of the land for taxes made in 1860, for the delinquent taxes of 1859. At the time Calloway commenced his action, to set aside this and other tax deeds, more than five years had elapsed since the execution and recording of this deed. Pitcher took possession and was holding the land under the plaintiff by virtue of a contract of purchase. A judgment in the Calloway suit would not have affected the rights of the plaintiff or Pitcher, they not having been made parties thereto. Heimstreet v. Winnie et al., 10 Iowa, 430; Baldwin v. Thompson, 15 id. 504; Beckwith v. Dargets, 18 id. 303; White v. Watts, id. 75; Donnelly v. Rusch, 15 id. 99; Johnson v. Harmon, 19 id. 56.
Thomas claimed the land under a tax deed then recorded more than five years, and Pitcher was in possession under him by virtue of his contract of purchase with Stickle, which had been assigned to Thomas. No action therefore to recover the land could, at the time Pitcher purchased Calloway’s title, have been maintained by Calloway, under the statute, which provides that “ Ho action for the recovery of real property, sold for the nonpayment of taxes, shall Ue, unless the same shall be brought within f/oe years from the date of saleP Rev. 790; Eldridge v. Kuehl, 27 Iowa, 160; Henderson v. Oliver, id. 20.
It is insisted, however, by appellee that, inasmuch as this tax deed shows upon its face that several tracts of land were sold for taxes in bulk for a gross sum, it is void on its face. That the statute of limitations applies only to a deed that is prima facie good. In this view we cannot concur. This statute is one of repose, and it was the manifest intention of the legislature to cure all such irregularities in the mode or mamner of sale, etc., which, within the five years’ limitation, might render the sale invalid. While the *78statute will not preclude a party after the lapse of five years from the recording of the tax deed from showing that, notwithstanding the recitals in the deed, “ the land was not sold for terns,” yet, as to an irregularity in the sale such as is claimed in this case, it must be taken advantage of before the statute has run, if at all. Upon such irregularities, when there has been a sale, the statute operates as a bar. See Case v. Albee, 28 Iowa, 277; Pillow v. Roberts, 13 How. (U. S.) 472. In the case last cited, Mr. Justice Grier, in the opinion of the court, says: “In order to entitle the defendant to set up the bar of this statute ” (a statute of Arkansas similar to ours) “ after five years’ adverse possession, he need only to show that he and those under whom he claimed held under a deed from the collector of the revenue, of land sold for the non-payment of taxes; he was not bound to know that all the requisites of the law had been complied with in order to make his deed a valid and indefeasible conveyance of the title. If the court should require such proof before a defendant could have the benefit of this law, it would require him to show that he had no need of the protection of the statute before he could be entitled to it. Such a construction would annul the act altogether.”
So in this case, the appellee points out only a single defect in the tax deed, viz.: that several tracts were sold for a gross sum, hence, if it were not for this irregularity in the sale, the plaintiff’s title would be complete and perfect, independently of the limitation clause in the statute, and he would have no need to rely upon it. If he must show a perfect title, by showing a strict compliance with all the requisites of the revenue law, before he can claim the benefit of the limitation clause, that clause is practically useless. We cannot concur in such a construction, a construction entirely annulling the effect and meaning of a portion of the law.
It follows from the foregoing views that plaintiff’s title *79to the land in dispute was paramount to that of Calloway’s which the defendant purchased in of him.
5-_purchase by owner. It is claimed, however, that Cook held a tax deed for the land made subsequent to that of the plaintiff and which was paramount thereto, which the defendant also purchased. Upon an examination of the evidence we find that, at the time of sale of the land for taxes upon which this latter deed is based, Cook was himself claiming to be the owner of the land under the tax deed of 1863 ; that March 2S, 1867, he conveyed the land by quitclaim deed to Stickle, which deed was recorded on the same day; and that, April 6, 1867, Stickle conveyed to the plaintiff, by warranty deed, subject only to the title bond under which Pitcher was in possession.
6. estoppel, And he held the certificate, upon which the tax deed was afterward obtained, at the time he conveyed all of his interest in the land to Stickle, the grantor of plaintiff and there is nothing in the evidence to show that he made any disclosure of the fact of having such certificate at the time of such conveyance. We are of opinion that by his conveyance and silence, Cook is estopped from setting up this subsequent tax deed, and that Pitcher cannot claim to occupy any better position than his grantor. When Cook conveyed all of his title emd interest in the land to Stickle by his quitclaim deed, he not only parted with all interest therein which he held under his tax deed, but also his lien (if any) he may have had on the land by virtue of the tax certificate, and he was estopped from predicating any title thereon.
The judgment of the district court dismissing plaintiff’s petition is reversed, and the cause remanded with directions to that court to enter judgment of foreclosure as prayed in plaintiff’s petition.
Reversed.