delivered the opinion of the court.
All consideration of questions involving the validity of the sale of the lands in controversy made to the levee board in May, 1868, i-s dispensed Avith by reason of the established fact that the lands were redeemed or purchased by Love under this sale, as well as under that made in 1869. Counsel for appellee have been misled by the statement of the auditor, W. W". Stone, Avhose deposition was taken. It is true this witness was asked, on cross-examination, to state Avhether the records of his office do not sIioav that Love redeemed the land from the sale of 1868, and, in his answer, he fails to respond to this question, and only states that Love redeemed from the sale of 1869. But he also says that he has no information in reference-to any of those sales or redemptions, except such as is furnished by the records of his office, copies of which he filed Avith his ansAvers. On page 103 of the record is-found the redemption from the sale of 1869, of which the witness speaks in his testimony, but on page 102 is found also a certified copy from his office, showing a redemption from the sale of 1868, as to which he is silent. This certified copy is made an exhibit to his deposition, and is referred to by him as supplying the information he has on the subject.
It is unnecessary to revieAv the statutes relied on by the *848appellees as curing any defects in that sale, since, if valid, it has become ineffectual by reason of the redemption.
Section 539 of the code of 1880 supplies no support to the claim of appellees, for several reasons. First, the answer does not set up that defendant and those under whom he claims have been in the actual occupation of thedaud for three years after the expiration of one year from the sale for taxes under which his title is derived, and since the adoption of the code of 1880. The answer only says that the parties under whom the defendant claims title, bought the land from Gwin and Hemingway in the year 1878, and have been in possession “ for more than three years'from the date of said deed.” This may be true, and yet the defendant, and those under whom he claims, may not have been in such occupancy for three years since the code (which is prospective in its operation) was adopted.
But this provision of the code does not confer title upon an occupancy of three years. Its declaration is that, “actual occupation for three years, after one year from the day of sale, of any land held under a conveyance by a tax-collector, in pursuance of a sale for taxes, shall bar anj^ suit to recover such laud or assail such title because of any defect in the sale of such land for taxes, or in any precedent step to said sale, saving to minors,” etc. The statute does not provide that possession for the time named shall confer title, nor that no suit shall be brought for the recovery of the land, but only that the'title claimed shall not be assailed after the lapse of the time named, “because of any defect in the sale of such land for taxes, or'in any precedent step to said sale.” If the land was legally sold for the taxes of 1868, and the defendant had occupied for the time named in § 539 of the code, this would not preclude a recovery by the true owner who could show a redemption of the land from the sale under which the defendant claimed, for the suit would not be “to recover the land or assail the title because of any .defect in the sale of such land for taxes, or in any precedent step to said sale,” *849but it would be to recover the land because, though legally-sold, the title had been re-acquired by the former owner by a step lawfully taken after the sale, viz., by redemption.
We have carefully read the evidence upon the subject of the adverse possession claimed by the defendant, and it is sufficient to say that the overwhelming weight is with the appellants.- Richberger and Neel, in very general and positive language, claim to- have held the land in possession for many years, but the particular facts which prove such possession are not given.
On the other hand, the witnesses for appellants, who reside in the immediate vicinity, testify that the whole tract is wild and uncultivated; that there is not now, and never has been, a house on it, and no part of it has ever been in cultivation. The work upon the land, performed by Sam Miller and Pink Green, which is the only thing specifically shown by the defendants as having the color of possession by them, is clearly proved to have been commenced in the year 1890, and to have been abandoned before a single foot of the land was in condition to be cultivated. What they did was not of the character to give possession, and was of so recent a date as to be of no effect in support of any bar by which the title of the appellants could be affected.
No defect in the title asserted by the appellants is suggested, and the decree should have been in their favor.
Decree reversed, and, decree here.