Gunnison v. Hoehne

Byihe Court, DixoN, C. J. If it be conceded that a stranger, or party in. possession claiming no title or interest in the land save that to be inferred from the fact of possession, may avail himself of the limitation prescribed by the tax laws, which I, for one, very much doubt, still the judgment in this case must be affrmed. The tax deed under which the plaintiff claims was recorded May 11, 1859. This action was commenced on the 9 th day of July, 1862. There is no evidence as to who was in possession, or whether the lot was occupied at all or not, between those dates. It only appears that the defendant was in possession on the day the action was commenced. Under these circumstances, we think it was incumbent on the defendant to show that the limitation fixed by the tax laws was applicable to the case, and how it was to be applied. To entitle himself to the protection of the statute he should show that he or some person under whom he claims or whose rights he represents, was in possession during the three years which elapsed next after the recording of the tax deed, or .at least that the premises were not vacant during that time. It has already been decided that the recording of the tax deed [270] is a public, authorized assertion of title, which will enable the original owner to maintain ejectment; and that, when the premises are vacant, the recorded tax deed, fair on its face, draws after it the possession, the presumption being that the title of the grantee is valid and unimpeachable. In the absence, therefore, of any proof as to the fact of possession or occupancy, we think the presumption must be in favor of the validity of the deed, and that the grantee was constructively or otherwise possessed. If this be so, then obviously the statute affords no protection to a party who comes into possession two months after the period of limitation has expired. Judgment affirmed.