This was an action of ejectment, in which although another title was set up by the defendant in the pleadings, yet the defense seems to have finally rested on a tax title.' The defendant claimed under Ephraim Jones, and there was evidence tending to show that C. W. Jones, to whom the tax deed in question was issued, was a son of Ephraim Jones. To avoid the tax deed, the plaintiffs, among other things, offered to show by the treasurer’s books, that the tax certificates on which the deed was issued, were purchased by and assigned to “ E. Jones.” This was done for the purpose of claiming that this E. Jones was the Ephraim Jones under whom the defendant holds, and that, as. it appears that he was in possession of the land and claiming title at the time when these taxes accrued, he was bound to pay them, and that therefore the assignment of. the certificates to him should be held equivalent to a payment. The law upon this point is, that if he was so in possession, and the taxes were assessed to him, he was bound to pay them; and if he allowed the land to be sold, and afterwards took an assignment of the certificates, this would be a payment, and he could not take out a deed upon them, and set it up against others who may have had the true title to the land. This question is partially considered in Smith v. Lewis, 20 Wis., 350, where Justice Downeh, asserts the doctrine that possession merely, under color of title, imposes an obligation to pay the taxes. Chief Justice Dixon, while declining to commit himself to that position, and holding that no such relation appeared in that case between the parties as would
Now, as our own statute provides that taxes may be assessed against the owner or occupant, and as Ephraim Jones was in possession, claiming title under an . administrator’s deed, when these taxes were assessed, it may rea sonably be inferred that they were assessed against him. Ii so, according to the rule above stated, he could not avaii himself of this tax title.
But the evidence offered was to show that the certificates were assigned to “E. Jones.” And it may be conceded that, in the absence of any other circumstance strengthening-such a conclusion, the jury would not be entitled to assume' that “ E. Jones” was Ephraim Jones. But when it appears that Ephraim Jones was in possession of the land, that these tax certificates were assigned to E. Jones, and that tax deeds were subsequently taken out on them in the name of a son of Ephraim Jones, we think a jury might well have inferred that the purchase was by Ephraim Jones, and that he had probably had 'the deeds taken out in the name of his son upon an understanding that the title was to be held for his benefit. Certainly they would have been entitled to infer that Ephraim Jones was the purchaser. And that being so, we shall not determine whether the purchase by him would so far have extinguished the certificates that he could not
It follows that the evidence offered tending to show that Ephraim Jones was the purchaser of these 'certificates, should have been admitted.
By the Court. — The judgment is reversed, and the cause remanded for a new trial..