43 So. 913
Miss.
1907
Whitfield, C. J.,

delivered the opinion of the court.

The appellees were the real and true owners of the land involved in this controversy, having a perfect paper title thereto from the government down to the late Judge William Coth*535ran; his title having been derived from a patent from the state of Mississippi to him. William Cothran and his wife, Sarah T. Cothran, died seised and possessed, and the complainants inherit the land from her, being the sons of the said Sarah T. Cothran by her former husband, J. W. Sanders; Judge William Cothran having died intestate in November, 1882, and his widow, Sarah T. Cothran, having died in January, 1892. No pretense of assault is made upon the fact that the complainants were the true legal owners by perfect paper title, properly derived as aforesaid; but the respondents, appellants here, claim tire land by virtue of a sale made to the state on the 10th of May, 1875, fortified by the various statutes of limitation usually invoked in such cases, which will be severally noticed.

It is to be especially observed, in the first place, that in the court below, where the learned counsel representing the appellant in this court did not conduct this cause, the respondents based their title in their sworn answer exclusively upon the following allegation: “Your respondents now state, on advice that the taxes due and owing on said land for 1874 not having been paid, said land was sold to the state of Mississippi on May 10, 1875, by the sheriff and tax collector of said county of Leflore, for the payment of said taxes of 1874.” And this allegation is several times repeated in said sworn answer of the appellants C. S. Kennedy, A. C. Kennedy, and Fred Blumenberg, and afterwards again emphatically repeated in the sworn answer of the heirs of Fred Blumenberg, who died pending the trial. It will thus be seen that in the court below, throughout, the appellants based their claim of title alone on. a sale of the land on the 10th of May, 1875/for the taxes of the year 1874 alone. That contention is, of coure, unsound, and that sale, if regarded as a sale for the taxes of 1874 — which was the sole claim of the appellants in the court below — was an absolutely void sale, since the sale day of the land for the taxes of 1874 was in February, and not May. See Laws *5361875, p. 49, c. 24, sec. 49; Gamble v. Witty, 55 Miss., 26; McGehee v. Martin, 53 Miss., 519; Mead v. Day, 54 Miss., 58; Harkreader v. Clayton, 56 Miss., 383, 31 Am. Rep., 369. When, however, .the case gets to this court, a complete change of front is made, the pleadings below absolutely disregarded, and.a new defense, not presented by the pleadings or by the proof in the court below, is here for the first time set up, to-wit, that the appellants had a good title under the sale on the 10th of May, 1875, as a sale under the abatement act, and that, if said sale was void for any reason, they are nevertheless protected by § 1709 of the Code of 1871, and by the three-year statute (§ 539 of the Code of 1880), and by the ten-year statute (§ 2730 of the Code of 1892). No such change of front in the face of the pleadings and the proof in the court below can be permitted.

But, if it were allowed, the result must plainly be the same. Treating the sale under which the appellants claim as a sale under the Abatement act, it is an absolutely void sale, for the reason that the appellants who claim under that sale fail utterly to introduce any evidence of any kind whatever to show that the land was of the class subject to sale under the Abatement act. It has been repeatedly decided that it is the duty of the tax purchaser claiming under the Abatement act to show affirmatively by independent proof, other than the tax deed itself, that the land was of the class subject to sale under that act, and as to which, therefore, the tax collector had the power to sell. In Dingey v. Paxton, 60 Miss., 1038, it was expressly held that “Proof of the fact that a certain tract of land was in 1873 assessed to the state is not sufficient evidence that it was held or claimed by the state under a sale for taxes due prior to the year 1874, so as to bring it within that class of lands which the Abatement act authorized to be sold on the 10th of May, 1875; for, if such sale to the state was made prior to the adoption of the Code of 1871, it could, only be proved by the deed from the tax collector, or, if made subsequently, it could *537only be proven by tbe list of lands sold.” Learned counsel for the appellants here assail this decision, and insist it is unsound. They seem, however, to have completely overlooked two subsequent decisions, Chambers v. Myrick, 61 Miss., 462, and Chamberlain v. Lawrence County, 71 Miss., 958, 15 South., 40, both of which again review the precise point, and expressly reaffirm the doctrine of Dingey v. Paxton, 60 Miss., 1038. In Chambers v. Myrick, Chief Justice Campbell, speaking for the court, referring to the fact that he who claims under the Abatement act must show the land was subject to sale under that act, said: “The appellee failed to show that the land sued for, and claimed by him as having been sold under the Abatement act, approved March 1, 1875, (Laws 1875, p. 11, c. 2), was of the class of lands described by that act, namely, such as were delinquent for taxes for a year prior to 1874 and held by the state by purchase for such delinquency. Gamble v. Witty, 55 Miss., 26. It was incumbent on him to produce evidence of that. The list of lands sold to the state, certified by the collector, was prima facie evidence of the validity of the assessment and sale, and did not import anything as to the particular lands intended to be dealt with by the Abatement act. This was fully considered and decided in Dingey v. Paxton, 60 Miss., 1038.” In Chamberlain v. Lawrence County, Cooper, J., speaking to the same point, said: “The defendant did not propose to prove that the lands then sold were delinquent for taxes of a year prior to the yeár 1874, and it was only lands of that class which were subject to sale under the act of March 1, 1875. Gamble v. Witty, 55 Miss., 26; Prophet v. Lundy, 63 Miss., 603; Chambers v. Myrick, 61 Miss., 459; Dingey v. Paxton, 60 Miss., 1038. It devolves upon one claiming under a sale made under that statute to prove by independent evidence that the land belonged to the class to which the statute applied. Dingey v. Paxton, and Chambers v. Myricle, supraIf anything can be regarded as settled, therefore, it is the soundness of Dingey v. Paxton, 60 Miss., 1038, in which this point was *538fully considered and decided, to-wit, that the list of lands sold to the state, duly certified by the collector, imports absolutely nothing as to -whether the lands sold were of the class dealt' with by the Abatement act, but that proof of that fact must be made by evidence independent .of such sales list. We thoroughly approve this announcement of the law, and trust it will be questioned no more.

The contention that the ownership by the state of this land could not have resulted from any tax sale later than that of 1874, which must have been for the taxes of 1873, and that this assessment roll shows that the lands were assessed to the state for the year 1875, and that these two facts show that the land was delinquent for taxes that accrued prior to 1874, is not only in the face, as stated, of the pleadings and evidence in this cause, bút in the face of the copy of the assessment roll itself, which shows that this particular assessment of these lands was filed August 5, 1875, which fact itself shows that the assessment was based on the very sale of May 10, 1875, in question. The case of Hoskins v. Illinois Central R. R. Co., 78 Miss., 768, 29 South., 518, 84 Am. St. Rep., 644, is decisive of the proposition that, where the tax collector has no power whatever to sell, none of these statutes of limitation invoked in this case have any application. The principle of the Hoskins case is that land which is sold, in the absence of any power whatever to sell it at all for taxes, can never be held by virtue of the application of any of the statutes of limitation' enacted in protection of tax. sales. And this case of Hoskins v. Illinois Central R. R. Co., expressly overrules Patterson v. Durfey, 68 Miss., 779, 9 South., 354, and Carlisle v. Yoder, 69 Miss., 384, 12 South., 255, and by implication, also, necessarily overrules the case of Brougher v. Stone, 72 Miss., 647, 17 South., 509. The same principle in effect is decided in Howell v. Miller, 88 Miss., 655, s.c., 42 South., 129. It is of no consequence, whatever, in the application of this principle, that the want of power to sell results from one cause rather than another, *539whether it be because of the nature of the swamp lands, -or lands entered under the homestead laws of the United States, or lands pretended to have been sold under the Abatement act, when they were not of the class as to which any power to sell under said act existed. The principle applicable in every such case is the same, to-wit, that, where there is no power to sell, statutes of limitation enacted in the protection of tax titles have no application whatever. Such sales are well characterized in Hoskins v. Illinois Central Co. as frauds upon the law itself.

It is insisted by the learned counsel for the appellants that this suit is barred by § 2730 of the Code of 1892, as interpreted in Jones v. Rogers, 85 Miss., 802, 38 South., 742. In that case, at page 836 and 837 of 85 Miss., at page 747 of 38 South., the court said “that adverse possession of defendant has nothing to do with the question, or with the operation of this particular statute. A complainant has a right to bring his suit in equity for land, whether he is in possession or not, and whether defendant is in possession or not; and, if he does not bring it within the period of ten years after his right of action in a court accrues, he is barred.” This announcement has been challenged several times in recent cases, but we have never yet had presented to us the actual necessity for dealing with it. That necessity now confronts us. This announcement .was not necessary to the decision in Jones v. Rogers, for the court had already held that the complainants in that case had deraigned no title! That was decisive of the case, and the opinion might well have stopped there. After the most careful review of the case, and of the general law, and of the statute, we are constrained to, and hereby do, disapprove and overrule this announcement of the law as unsound. So many eases are coming to this court based upon this declaration that we feel that it is highly essential that it shall now be expressly oyerruled, that it may no longer mislead. Said section 2731 is a mere counterpart, in' equity, of the similar section (section *5402730) as to ejectments at law, as shown by the very language of the section (section 2731) : “Persons claiming land in equity may not bring suit to recover the same, but within the period during which, by virtue of the provisions hereinbefore contained, he might have made an entry or brought an action to recover the same, if he had been entitled at law,” etc. “Recover the land” and “make an entry” are phrases common to both sections 2730 and 2731. The caption of section 2731 is “Same — Limitation as to Suits in Equity,” and the section itself is dealing with the right to sue in equity to recover the land, or make an entry on the land, and that in the same time within which the party might have made an entry or sued to recover the land at law'. The illustrations which could be given of the disastrous consequences of construing the statute as it was construed in the dictum in Jones v. Rogers are numerous, and occur at once upon reflection. This very case furnishes a most pointed illustration. Here are the true and original owners of this land, which it is admitted in the pleadings on both sides is wild and uncultivated, and of which there is not a particle of proof that the appellants ever had actual adverse possession; and yet, if the plea set up here could be maintained, as it might be if that decision on this point was sound, these true owners, with a perfect paper title, which gave them the constructive possession of the land, are to lose their land, by the mere flight of ten years’ time, in favor of a tax purchaser at a sale absolutely void for the want of any power to sell it, simply because such tax purchaser, never in adverse possesison, and holding a deed void for want of power to sell at all, has not been proceeded against by such true owner. This cannot be the law. This construction of the statute would make it clearly unconstitutional, as depriving the citizen of his property without due process of law.

It was well said in Dingey v. Paxton, 60 Miss., 1054, in holding section 13 of the act of April 11, 1876 (Laws 1876, p. 172, c. 15), unconstitutional, as follows: “By'proceeding *541in invitum the state had attempted to acquire title under its laws as then existing, and had failed. By a subsequent law it provides that notwithstanding such failure the shadow of title thus acquired shall become the actual title, unless attacked within a certain time. It is the expiration of time, without regard to possession, which is to transfer title from the owner and vest it in the state or its vendee or donee. The power of the legislature to prescribe within what reasonable time one having a mere right of action shall proceed is unquestionable; but there is a wide distinction between that legislation, which requires one having a mere right to sue to pursue the right speedily, and that which creates the necessity for suit by converting an estate in possession into a mere right of action and then limits the time in which the suit may be brought. The mere designation of such an act as an act of limitation does not make it such; for it is, in its nature, moré than that. Its operation is first to divest from the owner the constructive possession of the property, and then to invest it in another, and in favor of the possession thus transferred to put in operation a statute of limitations for its ultimate and complete protection. One who is in actual or constructive possession of his lands, and who has the right of possession and of property, needs no action to enforce his rights. He is already in the enjoyment of all that the law can give him and cannot be disturbed in such enjoyment, except by ‘due course of law.’ If possession and the right of possession and the right of property are each an element of title, by what right can the legislature divest the one, if it is prohibited by the constitution from interfering with the other ? If it be said that the owner of vacant land is only in possession thereof by fiction of law, and that the legislature may at any time destroy such fiction, the reply is that this has not been -done, or attempted' to be done, by the act under consideration” (nor under § 2731 of the Code of 1892). “The fiction remains, hut under it the owner is placed out of, and a stranger is placed in, possession. It is apparent that the effort *542iá to do indirectly that which may not be directly done,- to divest title by mere-legislative decree.” We cite this language with our heartiest approval for the purpose of showing indisputably that if this section 2731 has no regard to any question of adverse possession, or to whether the defendant in a particular case has been in the adverse possession of the land, or not, it would be manifestly unconstitutional, and therefore void. But this act is perfectly constitutional. It meant nothing save that one who sues in equity, bringing what is practically an ejectment in equity, must bring it against some person as de-, féndant, and that such defendant must be in the adverse possession of the land. It would be meaningless to talk about suits to “recover the land” and “making an entry on the land,” if the contemplation of the statute were not that possession of the land is an essential feature in the very nature of things. It is vital that there shall be a defendant to be sued, and that that defendant shall be in possession of the land sued for, before the limitation set up in this section can be claimed.

It is next insisted that this suit is barred under the decision in McCaughn v. Young, 85 Miss., 277, 37 South., 839. But the facts of the case at bar are wholly unlike the facts in that case. There is not a particle of proof here that any taxes were ever paid by the appellants. The fact that the lands were assessed to them is no proof of any kind whatever that any taxes had been paid, or of ownership. Dingey v. Paxton, 60 Miss., 1038. There is no proof here of any timber sold from this land, nor any proof of any actual'adverse possession, within the meaning of the law of adverse possession; as immemorially laid down. In McCaughn v. Young> actual occupancy of the land was shown. It was further shown that the taxes had been paid by Boselle, and that he entered into possession of the land, erected a sawmill upon an adjoining tract, cut all the timber suitable for milling from the land, and sold • it. Under one of some trust deeds executed by Koselle the property was sold, and purchased by the'Adams Machine Company, which *543remained in possession, and paid the taxes, and offered same for sale, when another bought it, entered into actual possession, cut and deadened timber, and cleared the land for cultivation. There is not one particle of testimony in this case to make out any such facts as existed in McCaughn v. Young. It therefore has no application. It is idle to say that knowledge of the fact on the part of the true owner that some one had some sort of paper title, good or bad, under which he claimed the land, is the equivalent of actual adverse possession continuing for ten years notoriously, openly, and uninterruptedly. Adverse possession, as known to the law from the beginning until now, is a well-ascertained and well-defined possession. Nothing short of that sort of adverse possession can toll any entry or bar a suit. The adverse possession known to the law from time immemorial is no such airy thing as mere knowledge on the part of the true owner that somebody has some sort of paper title which he asserts for more than ten years against him, without himself ever having had any actual occupancy of the land, and no such doctrine was intended to be announced in McCaughn v. Young. -It is a contradiction in terms to characterize that as adverse possession in respect to which there has never been any possession at all. All that is said in Mc-Caughn v. Young upon this subject is in reference to the different principles applicable in the case of land susceptible, and land not susceptible, of actual occupation. That is all that the court meant on this subject in that case. It is thus made clear that none of the statutes of limitation invoked is of any avail on the facts which make the case .presented for our consideration, and every case is made by its own particular facts.

We say nothing as to the accounting. That the court may deal with when the report comes in. We have held, too often for any further iteration of the principle, that in this state no mere laches, short of the period required by the statute, avails anything; and there is not an element of estoppel shown by the testimony. Solemn paper title, perfect from the govern*544ment down, is of great, definite, fixed value, and cannot be brushed aside by attempting to set up tax titles, absolutely void for want of power to sell, and seeking to make them good by pleading statutes of limitation having no application, and constructing an airy fabric of title so insubstantial, that—

“Like the Borealis’ race, It flits ere you can point its place.”

Affirmed.