DIVISION ONE.
Brace, P. J.This is an action in ejectment to recover the possession of the west half of the southwest, quarter of section 13, the east half of the southeast quarter of section 14, and the west half of the northwest quarter of section 24, township 41, range 17, in Morgan county. The petition is in common form; the *370answer a general denial. The case was tried by the court without a jury. Judgment for the defendant, and plaintiff brings the case here, by writ of error.
Plaintiff acquired title to the premises by patents from the United States government, dated November 1, 1859. In 1867 the east half of the southeast quarter of section 14, was sold for the taxes of the years I860'and 1866; and O. O. Brown and G-eorge P. Clark became the purchasers thereof and thereafter received a deed therefor from the collector of said county dated April 24, 1869? On the fourth day of October, 1881, the said Brown and Clark, by quitclaim deed of that date, conveyed the said east half of the southeast quarter of section 14 to the defendant, who, a short time thereafter, went into possession of a part thereof, claiming under said deed. On the first day.of January, 1890, this suit was instituted.
At that time the defendant was living in a house ■erected by him in the northeast corner of the southwest quarter of section 13, and had about fifteen or twenty acres cleared up, under' fence, and in cultivation, partly in the west half of the southwest quarter of section 13, and partly in the east half of the southeast quarter of section 14, and about two acres in the west half of section 24. This suit was brought within ten years after the defendant went into the possession of the land he thus occupied.
There was no evidence that any person, before the defendant, was ever -in actual possession of the west half of the northwest quarter of section 24, and to it the defendant had no color of title, and there can be no question that the plaintiff as to that tract ought to have recovered.
The defendant had no color of title whatever to the west half of the southwest quarter of section 13 and as to all .that, part of that tract not in the actual occupa*371tion of the defendant, there can be ño question that the plaintiff ought to have recovered.
While the tax deed read in evidence was invalid and did not convey the title of the plaintiff to the east half of the southeast quarter of section 14, it was sufficient to give color of title to those claiming under it, and if the defendant had been in possession of that part of that tract which he actually occupied, claiming the whole of it under said deed, in connection with his occupancy of the few acres in section 13 on which his house was built, for a period of ten years before this suit was brought, he could have successfully defended against plaintiff’s action as to the whole of the east half of the southeast quarter of section 14, and as to so much of the land in section 13 as was actually occupied by him. But his own possession of these premises did not extend to the statutory period, and he must have failed also as to this part of the land, unless his possession was connected with some prior possession. An effort was, therefore, made to show some such possession, to which his possession could be tacked.
The defendant in error has filed no brief in this cause, and we are not advised upon what particular evidence reliance is placed to support the judgment. We find, however, in the bill of exceptions this statement: “Counsel for defendant then read in evidence the following statement set forth in his application for a continuance:
“It is admitted that Mrs. Lydia Stephens, if present, would testify to the following state of facts: That he expects to prove by said witness that she, as a tenant of defendant’s grantees, went into the possession of the lands sued for more than ten years next before the bringing of this suit. And he expects to prove by said absent witness that the defendant and those under whom he claims have been in the open, notorious, *372adverse, uninterrupted possession of the lands sued for, for more than ten years next before the bringing of this suit, and during all of said time the defendant and, those under whom he claims' have during all of said time claimed title to said land, that said witness resides-in this, Morgan, county.”
Whether this statement be construed to mean that it was admitted that if the said Lydia was present she would, testify that defendant expected to prove by her the string of legal conclusions therein contained, or that she herself would testify to such conclusions, it is equally worthless as evidence, containing no statement of facts to be proven by her, from which such conclusions might be drawn. The facts which the legal evidence in the case tended to prove were that the plaintiff was the owner of a- body of land of four hundred and eighty acres in these sections, including that in controversy, that it was timber land, that he was a. nonresident, that he kept the taxes on his land regularly paid up except, perhaps, for those years for which it was sold as aforesaid. That prior to such sale there was on these lands two small cabins, but-where located on said lands does not clearly appear. It does not appear that any land was inclosed or used in connection with these cabins or by whom they were built, but they were occupied from time to time by different persons; whether in succession or at intervals, whether with or without the consent of the owner does not appear. They were probably mere trespassers.
The evidence tends to prove that there was a family or maybe two families living in -these cabins at the time Brown and Clark received their tax deed, and that these, or one of them, continued to live there afterward; whether continuously or up to what time-does not appear. Whoever they were, and however long they or any of them remained there, they stayed *373just as they or those before them had stayed, before the tax sale was made and the tax deed executed. There is no evidence that any one of them ever paid a •cent of rent, attorned to or in any way became tenants •of Brown and Clark, except in the mind’s eye of Clark, who testified in this case, and speaks of them as their tenants.
The fact is, however (as his evidence plainly •shows), that Brown and Clark never exercised any acts ■of ownership over the land after their purchase at tax sale, paid no taxes thereon, and did not even put their •deed upon record. And when the defendant took possession under that deed, there was no land cleared up or inclosed; one of the cabins had been torn down .and- moved away or destroyed, and the other without roof or floor was abandoned and unoccupied. How long the premises had remained in this condition does not appear. But evidently there had never been, prior to defendant’s taking possession, an adverse possession by any person that could have defeated the plaintiff’s title, nor any possession of any kind with which the ■defendant’s possession was connected, or to which it •could be tacked, to eke out the statutory period, for that possession.
The judgment should have been for the plaintiff for the land sued for instead of for the defendant, and the same ought tobe reversed, and the cause remanded for new trial.
Macearlane, J., concurs; Barclay and Robinson, JJ., dissent, and the ease is transferred to ■court in banc.IN BANG.
Per Curiam — The foregoing opinion handed down in division number one is adopted as the opinion of the court in banc.
Gantt, Sherwood, Macearlane, and *374Burgess, JJ., concurring with Brace, C. J., therein. Barclay and Robinson, JJ.,' dissenting.’The judgment of the circuit court is therefore reversed and the cause remanded for new trial.