other title paper.1 Wherever the deed is made prima facie evidence of title, actual possession for the period required by statute is good to the limits in such deed, although it may be shown by testimony that some essential step has been omitted. These defects would have availed the owner in a controversy before the bar of the statute, but after that he is concluded, and his title is extinguished. The difference of opinion which has existed on the subject was where the deed was void on its face.

Improvements. At common law, when there was recovery of real estate, it included all the improvements, and although they might have been erected in good faith, there was no means by which the party ousted could be compensated. It is true that if the successful party brought an action for mesne profits, he was allowed to offset the value of the improvements, but beyond this he had no remedy, and could obtain no compensation. So if for any purpose relief is sought in equity, that court, where the party stands by and sees improvements made without giving notice of the adverse claim, will only give relief on condition of allowance for improvements. The equitable principle has been embodied in the statutes of nearly all the States, allowing the bona fide occupant of lands, who is evicted, to recover the value of the improvements. The statutes often allow the party bringing ejectment to file a petition for an account for rents and profits, and recover them in the same suit in which he recovers the land, at the same time allowing the defendant to claim for improvements made in good faith, and if the amount allowed for improvements exceeds the rents and profits, making the residue a lien on the land. The main question in such cases is whether the improvements were made on land to which the party believed the title good. Where seated land is not allowed to be sold for taxes, if the purchaser had evidence actual or constructive that it was seated, such as traces of ancient improvements, he is not entitled to recover for improvements; or if by the exercise of reasonable diligence he could have known that the title was not good-as in a case when the sale by the sheriff is required to be upon judyment and execution, and there was no judgment and execution—he is not entitled to compensation for improvements. He must see that there was no power to sell, and it is bad faith. A minor redeeming land in the period limited after his attaining majority must pay the

4

1 Hamilton v. Wright, 30 Iowa, 485.

2 Bright v. Boyd, 1 Story, 478; Bradley v. Snyder, 14 Ill. 263.

3 Ross v. Irving, 14 Ill. 171; Liggel v. Long, 7 Harris, 499; Gilmore v. Thompson, 3 Watts, 106; Code of Virginia, ch. 131, 132.

Lambertson v. Hogan, 2 Penn. St. 22; Robson v. Osborn, 13 Texas, 307.

purchaser for improvements, unless the purchaser knew that the land was seated, in which case it is bad faith.1

A tract of land was sold for taxes in 1869, and a deed executed in pursuance thereof. Afterwards suit was brought to recover possession. The defense was adverse possession, and a claim for improvements made under a title believed to be good at the time. The facts were these: O'Brien, who owned the land, died in 1855, leaving a widow and several children. His tenant, living on the land at the time, soon after married the widow, and continued in possession of the premises with the children of O'Brien. In 1859 and 1861 he made considerable improvements on the place. He exercised entire control over the premises from his marriage until the death of his wife, in 1872. The suit for possession was commenced in 1875. The court held that as to the children of O'Brien, who were the claimants (aiding their title by a tax deed), the possession was not adverse, being until the death of the wife a joint possession, and that the improvements were not made when he had reason to think his title good."

§ 122. Title of Purchaser, is it Absolute or Derivative?—The solution of this question depends on the theory of taxation, and the machinery used to collect the tax on land by the sale thereof. If the land tax is a tax on the land as such, and not on the owner of the land by reason of his property in the land, then, when the tax is not paid, the land is in default, and the land as such is sold. But even where this theory is not recognized, if the proceedings for default in the payment of the tax are proceedings in rem against the land— though the owner, if known, is made a party, yet, if he is unknown, the proceedings are not delayed for that cause the judgment or decree of the court is a condemnation of the land as such for the default in the non-payment of the tax. In such case, the sale is not of the interest or right of the owner in the land, but a sale of the land free from all claims of any person. The same principle would apply where land of a certain character, as unseated or unoccupied land, is alone liable to be sold for default in the payment of taxes thereon, or where non-resident land is assessed as such, without reference to the name of the owner.1

8

A remarkable case, as to the fluctuating decisions of the higher

1 Lynch v. Brudie, 63 Penn. St. 706.

2 O'Brien v. Joyce, 117 Mass. 360.

3 Atkins v. Hinman, 2 Gilman, 449; Elston v. Kenniott, 46 Ill. 202; Clarke v. Strickland, 2 Curtis C. C. 439; Biscoe v. Coulter, 18 Ark. 423; Jones v. Devore, 8 Ohio, N. S. 430; Eitel v. Foote, 39 Cal. 439; Hahn v. Kelly, 34 Cal. 391.

courts, occurred in Ohio.1 Ross entered land of the United States in 1810, and it was surveyed in 1816, and assigned to Neiswanger. The land was assessed to Ross for taxes. In 1829, it was sold for nonpayment of the taxes, and purchased by Sterling, who sold it to Gwynne, who took possession of the land. Neiswanger brought ejectment, but failed, the court holding that the plaintiff had the legal title and must prevail, founding its judgment on a decision in that State, that a sale of land for taxes does not affect the legal title of the patentee, but intimating that Gwynne had an equitable title. He then filed his bill, claiming the right to have the legal title conveyed to him, and the bill was dismissed, on the ground that he had acquired the legal title by his purchase, though the patent had not been issued at the time of purchase. It is clear that the last decision was correct, and is sustained by a case heretofore noticed on the doctrine of relation. The property of Ross was such as was liable to tax, and the subject of sale, and the sale being regular, the purchaser at least stood in his shoes. This assignee, Neiswanger, bought the land subject to the claim of the State for its taxes, and when the patent was issued, although in the name of the assignee, it inured to the benefit of the purchaser at the tax sale, who became entitled to the land, because of the default of Ross and his assignee in failing to pay the tax assessed on the land.3

In those States where the land is assessed to the owner, a report is made of his delinquency in paying the tax, and the sale is made by the tax officers in pursuance of such report, and there are no proceedings against the land in rem. The purchaser at the tax sale then becomes the owner only of such interest as the person assessed had in the land. In Virginia, this doctrine does not apply to sales of forfeited and delinquent lands under the acts of 1835, 1836, and 1837; there the sale is of the land as such, which has been forfeited to the State, and the forfeiture decreed by a court.5 But even in these States the doctrine is subject to modifications. It is the fee-simple title to land that is regarded in the assessment of land, and although where there are different interests in the land, it is assessed to the life tenant, and it is the duty of the tenant to pay the taxes, yet when sold for non-payment, the sale is of the fee-simple title. The sale

Neiswanger v. Gwynne, 15 Ohio, 367; s. c. 18 & 20 Ohio.

2 Stuart v. Parish, 13 Ohio, 74.

Landes v. Brant, 10 How. 372.

4 Dunn v. Winston, 31 Miss. 135; McQuain v. Meline, 4 Quarterly Law Journal (Va.)

28; Smith v. Chapman, 10 Gratt. 468; Rice v. Auditor, 30 Mich. 12.

510 Gratt. 468; but see Hoge v. Currin, 3 Gratt. 192.

6 Willard v. Blount, 11 Ired. 624.

cuts off all liens created by the act of the owner, as a mortgage, or resulting from his liability as owner created by law, such as taxes for former years. The lien for the State taxes is sometimes retained by statute, as, in California, "taxes shall be a lien on the first of March, and such lien, to the absolute exclusion of all other liens, shall continue until all the taxes thereon shall be paid." A sale for taxes for one year was held not to destroy the lien for a previous year, in consequence of this statute.2 In Iowa, by statute, when lands mortgaged for money belonging to the school fund are sold for taxes, the lien of the school fund is not divested, and the sale is subject to such lien.3

Where the proceeding is in rem against the land, dower is barred as well as other interests, but in Illinois, by express statute, the widow is not barred by any laches or forfeiture of the husband. Where only the interest of the owner is sold, it is said that the widow is not barred. And Mr. Blackwell thinks that upon principle she ought not to be barred in any case. But it is difficult to perceive how, when the land itself as such is forfeited to the State, because the tax thereon is not paid, that the right of any one could be saved. And where the interest of the owner is sold, it may be doubted if the widow is not barred. She claims through the husband, who holds the title subject to the condition that he will contribute to the support of the State such sums as may be assessed on his land, and the claim is one in its nature paramount to all others.

In Pennsylvania, where rent is reserved in a perpetual lease, by statute, the lessor is taxed on the value of the rent reserved, and the lessee on the land itself. In such cases the land cannot be sold for non-payment of the taxes on the rent reserved, the incorporeal hereditament, for it can only be sold for non-payment of taxes on the land itself."

In collecting the direct tax to the Federal government under the act of 1862, the commissioners, in assessing and collecting the tax, used the rolls in use in the States for previous years. Smith was the owner of a rent reserved on a house and lot in Alexandria, assessed on the roll to the lessee, who held the fee-simple title, subject to the

1 Parker v. Baxter, 2 Gray, 185; Jarvis v. Peck, 19 Wisc. 74; Sayles v. Davis, 22 Wisc. 225; Bowman v. Thompson, 36 Iowa, 505.

2 Cowell v. Washburn, 22 Cal. 519.

Lovelace v. Berryhill, 36 Iowa, 379; State v. Shaw, 28 Iowa, 67.

4 Jones v. Devore, 8 Ohio, N. S. 430.

5 Revised Statutes, 1845, p. 200, § 14; Finch v. Brown, 3 Gilman, 488. Blodgett v. Brent, 3 Cranch C. C. 394; Blackwell on Tax Titles, 550. 7 Irwin v. Bank of U. S. 1 Barr, 349.

rent reserved. It was sold for the non-payment of the direct United States tax assessed thereon, and Turner became the purchaser. Smith sought after the sale to enforce by distress his claim for the rent reserved, claiming that Turner had bought only the interest of the lessee. It was decided that the direct tax under the act of 1862 was a tax on the land as such, and not on the owner by reason of his property in the land, and that the sale divested all the titles of all parties who had interests in the land, and that the title of Turner was absolute. Judge Miller, delivering the opinion of the court, doubted if the act of 1861, on the same subject, was in its essence a tax on the land as such, but the language of the act of 1862 was different, and such as to make the tax a tax on the land as such.1

1 Turner v. Smith, 14 Wall. 553.