14 Ind. 242 | Ind. | 1860
Ejectment for the east half of the southeast quarter of section eleven, &c., in Switzerland county. The suit was instituted November 10, 1848, by the appellants. Vienna Hearick and others, who claimed title under one James Hearick, deceased, were the defendants.
The issues were submitted to the Court, who found for the defendants, and, having refused a new trial, rendered judgment, &c.
The record contains the following agreement of facts:
On the 19th of May, 1818, one Samuel West, of Cincin
These facts sufficiently prove that the defendants, and those under whom they claimed to have derived title, were in the continued and uninterrupted possession of the premises in contest for at least twenty years prior to the commencement of the present suit. Was that possession adverse? The land, as has been seen, was purchased from the United States, May 16, 1818. By an act of congress of April 19, 1816, it was taxable for state and county purposes, after the expiration of five years from the day of sale. U. S. Stat. at Large, p. 290, § 5. And was, consequently, liable to be taxed in 1824. In that year it was assessed, legally taxed, and, under a precept regularly issued, sold by the proper collector, who gave the purchaser a certificate of purchase. By this sale and certificate, it seems to us that he obtained at least a colorable title.
But it is argued that everything not admitted in the agreed case is denied, so far as regards the collector’s sale; that the statute required the land to be advertised, and, as the record does not show that it was advertised, that fact was not admitted, but denied; and being thus denied and not proved, it must be intended that the land was sold without advertisement, and the result is, the collector’s certificate and deed are void. In answer to this, it may be said that the statute under which the collector proceeded,
In this case, it was fully proved that the possession of Mclntire, and also of Stephen and Frisby Hicks, was commenced in good faith, under an assertion of right, and a claim of title which they believed to be good. Possession thus taken and continued may, in our judgment, be held adverse, though the claim of title be under a sale for taxes, when, in point of fact, the land sold was not advertised prior to the sale. Pillow v. Roberts, 13 How. 472.— Vancleave v. Millikin, 13 Ind. R. 105.—Blackw. on Tax Titles, 665, et seq.
The appellants assume another ground. They say that the statute of limitations did not commence running until the 10th of December, 1845, the date of their patent, because until that date they could not legally assert their right of possession. No authority is cited in support of this position, nor do we know of any. The record shows that the plaintiff’s lessors made final payment for the land in suit in April, 1825; and it must be intended that they were then entitled to a patent, and, for aught that appears in the record, could have obtained one, and thus have
If, indeed, the sale for taxes was irregular, so much so that the collector’s deed conveyed no title, or if these lessors had redeemed the land within two years from the day of the tax sale, in either event, we perceive no reason why they, being the rightful owners' of the equitable title, could not by suit in equity have obtained a decree giving them possession of the premises. It seems to us that they cannot be allowed to say that, until the date of their patent, they could not have legally asserted their right to possession.
Again, ,it is insisted that, though the forms of the statute were strictly pursued by the collector, the plaintiff is still entitled to recover; because, as the owners of the land held by entry, and not by patent or grant, the collector, when he sold it, sold an equitable title only, which is all the title his deed conveyed to the purchaser, and the title thus conveyed cannot, in this suit, be allowed to prevail against the legal title conveyed by the pal ent. This position, though plausible, does not seem to be conclusive. In view of the act of congress, to which we have referred, the state had a perfect right to authorize the assessment and
If, then, it be assumed that the sale, in this instance, was regular, according to the provisions of the act prescribing the duties of the collector, it follows that the patent issued to the lessees of the plaintiff related back to the date of the entry of the land at the United States land office, and inured to the protection of the defendants’ title under the collector’s deed, and that their title, thus protected, should prevail in this action. We are unanimously of opinion that the judgment __ should be affirmed.
The judgment is affirmed with costs.