rendered the opinion of the court.
Possessory action, under the code, instituted February 10, 1906. Complaint is in usual form, to which defendant (appellee) filed answer containing four defenses: First, general denial; second, pleading title in defendant under tax deed recorded February 15, 1899; third, pleading same title as in second defense, also that defendant and his grantors have held possession of the land at all times since recording the deed, and the five years statute .of limitations; fourth, pleading title in defendant by virtue of a tax deed recorded December 27, 1906, which deed was founded upon public sale of the premises by the treasurer of the county December 7, 1908, for the delinquent taxes of 1902. Issue upon all new matter pleaded in the answer was formed by plaintiff’s replication. The case was tried to the court without a jury, which found in favor of defendant and rendered judgment accordingly.
At the trial plaintiff showed a connected title to the premises from the government to himself. Defendant’s effort to prove title under the second and third defenses failed, because the tax deed therein pleaded was void on its face, and was excluded from evidence.
The judgment appealed from rests upon the tax deed pleaded in the fourth defense. When this deed was offered in evidence plaintiff objected on the ground that
Appellant’s theory is clearly stated and vigorously maintained, which is that, appellee having pleaded title to, and possession of, the land, under the tax deed recorded February 15, 1899 (void on its face), and having paid all taxes assessed thereon up to the year 1902, could not default in the payment of taxes for the year 1902, let the premises go to tax sale, purchase the same at the sale, and acquire any title thereby, but that such purchase would be deemed in law a payment of the taxes only.
Before proceeding to a consideration of the legal questions presented,' it is essential to outline, as briefly as possible, the pleadings and facts as they appear from the record.
The third defense, as noted, pleads that defendant and his grantors “have had and held possession” of the land since the execution and recording of the tax deed referred to in the second defense. The replication denied these allegations. There is no evidence upon this issue, so that physical possession on the part of either plaintiff or defendant is not shown to have existed at any time. .Constructive possession, however, is presumed to be in appellee by virtue of his established title from the government. Defendant’s claim of constructive possession.
Defendant pleaded in his answer that he had paid taxes on the property, to the amount of $100, and although this was denied in the replication, still, at the trial it was stipulated between the parties that the amount of taxes should be agreed upon between them. Prom this it is' fair to presume that defendant and his grantors paid, probably, all the taxes upon the property from the year 1894 up to the year 1902. The first tax deed recorded, February 15, 1899, being void on its face, fixed no title in defendant or his grantors, but the same was color of title under which the taxes might be paid by defendant and his grantors. Prom the record, therefore, we find this situation: Plaintiff at all times held the legal title to, and was in constructive possession of, the premises, unless such title was nullified' by defendant’s tax deed, issued and recorded December 27, 1906.
Defendant offered in evidence in support of his second and third causes of action the tax deed of February 10, 1899, from the county to A. T. Lambert, which was based upon a tax sale of 1894. This deed was properly excluded from., evidence, on objection, as being void on its face. Defendant then offered to prove title in himself through mesne conveyances from Lambert, but the court refused this proof, on objection by plaintiff, to which ruling defendant excepted. No cross-errors are assigned.
Prom the briefs it would appear that counsel for both parties are somewhat confused over this record. Both seem to think that the record fails to show the court permitted defendant to amend his answer to show who was the real purchaser at the tax sale of December,
We have carefully examined all the authorities cited by counsel on both sides, and find the question raised an interesting one, and of first impression in this jurisdiction. 'However, as the case is presented here by the record, we find it necessary to decide the point, as the authorities cited refer to a different state of facts than those we are now considering.
Appellant contends that in an action of ejectment, if a defendant is in possession of land under claim of title, colorable or otherwise, and is under, legal duty or obligation to pay the taxes assessed against it, he will not be permitted under these circumstances, to default in the payment of taxes, allow it to go to tax sale, become the purchaser himself at. the sale, and then acquire title through the tax deed afterwards delivered; further asserting that the rule would not be changed if the purchaser were an agent or a stranger from whom he subsequently purchased the certificate of sale. The rule stated is supported by a multitude of decisions and text writers, though a few can be found inclining to an opposite view. The trouble about applying the rule here is
Inasmuch as counsel have displayed great zeal and energy in the research of the law upon the rule mentioned, we append a partial list of the authorities cited by them, for what they may be worth to the profession. — Whitney et al. v. Gunderson, 31 Wis., 359; Dubois et al. v. Campau, et al., 24 Mich., 360; Lacey v. Davis and McFarren, 4 Mich., 140, 66 Am. Dec., 524; Bassett and Wife v. Welch, 22 Wis., 175; Smith v. Lewis et al., 20 Wis., 350; Douglas v. Dangerfield, 10 Ohio, 152; Guynn et al. v. McCauley et al., 32 Ark., 97; Jacks v. Dyer et al., 31 Ark., 334; Cone v. Wood, 108 Iowa, 260, 79 N. W., 86, 75 Am. St. Rep., 223; Lybrand v. Haney, 31 Wis., 230; Thayer v. Hartman, 78 Miss., 590, 29 South., 396; Stubblefield v. Borders, 92 Ill., 279; Blackwood v. Van Vleit, 30 Mich., 118; Seaver v. Cobb, 98 Ill., 200; Oswald v. Wolf, 129 Ill., 200, 21 N. E., 839; Blackwell on Tax Titles (5th Ed.), vol. 1, sec. 607; Cooley on Taxation (3d Ed.), vol. 2, pages 973-975.
In the above list positive and convincing authority can be found sustaining the proposition that one in possession of land under a void tax deed (which is the case
Discovering no error in the record, the judgment will be affirmed.
Judgment Affirmed.
King, J., not participating.