Gill v. Candler

McClain, J. [333] As we have no argument for appellees, we shall dispose of the case as briefly as possible. It appears that the tax sale under which plaintiff claims was made in 1889, and the deed was issued in 1893. Defendants’ evidence shows that they had been in possession of the premises for some six or seven years prior to the tax sale, and have been in possession ever since. The present action was commenced in 1898. There are two good reasons, clearly appearing in the record, why defendants’ plea of the statute of limitations against plaintiff’s tax deed cannot be sntained. In the first place, the bar of five years against a tax deed (Code, section 1448) is only available to one who was the owner of the title a.t the time of the sale. [334] Lockridge v. Dagget, 54 Iowa, 332; Varnum v. Shuler, 69 Iowa, 92. Defendants introduced no evidence of title whatever. Their possession was not shown to have existed for such length of time prior to the tax sale as to give them title by adverse, possession. In the second place the evidence shows that the possession since the issuance of the tax deed has not been adverse to the person claiming title under such deed, but under an arrangement with him by which his title was fully recognized. Under such conditions, no continuance of possession will give rise to the statutory bar. Litchfield v. Sewell, 97 Iowa, 247. As to necessity of adverse possession to sustain the plea of the general statute of limitations in an action to recover possession of real property, see notes to Code, section 3447, p. 1256. — Reversed.