his heirs and assigns, a good and valid title, both in law and equity, and shall be received in evidence in all courts in this State, as a good and valid title in such grantee, his heirs and assigns, and shall be evidence of the regularity and legality of the sale of such lands." In Pillow v. Roberts,1 which was an action of ejectment, the defendant set up a tax title under the law last cited, and relied upon it as a paramount title, and as a sufficient title under the statute of limitations above recited, but judgment was rendered against him, and he prosecuted his writ of error, and succeeded in reversing the judgment. On the point as to the statute of limitations, Judge Grier, who delivered the opinion, remarks: "In order to entitle the defendant to set up the bar of this statute, after five years' adverse possession, he had only to show, that he and those under whom he claimed, held under a deed from a collector of the revenue of land sold for the non-payment of taxes. He was not bound to know that all of the requisitions of the law had been complied with, in order to make the deed a valid and indefeasible conveyance of the title. If the court should require such proof, before a defendant could have the benefit of this law, it would require him to show that he had no need of the protection of the statute, before he could be entitled to it. Such a construction would annul the act altogether, which was evidently intended to save the defendant from the difficulty, after such a length of time, of showing the validity of his tax title." [Similar views have led to like decisions in other States.2] The Pennsylvania statute provides, that "no action for the recovery of land sold for taxes shall lie, unless the same * 586 be brought within five years after the sale thereof for taxes as aforesaid; Provided, always, that where the owner or owners of such lands sold as aforesaid, shall, at the time of such sale, be minor or minors, or insane, and residing within the United States, five years after such disability is re 1 13 How. (U. S.), 472. 2 See Edgerton v. Bird, 6 Wisc. 527; Sprecker v. Wakeley, 11 Wisc. 532; Hill v. Kricke, 11 Wisc. 442; Knox v. Cleveland, 13 Wisc. 245; Vancleave v. Milliken, 13 Ind. 105; Doe v. Hearick, 14 Ind. 245. moved, shall be allowed such person, or persons, their heirs, or legal representatives, to bring their suit or action for recovery of the lands so sold." From what period of time does the limitation begin to run? from the day of sale, or from the time when the purchaser takes possession? In the first case in which this question occurred, it was held that the period of limitation began to run from the time of sale, by the express words of the act; and that, for the purpose of enabling the owner to sue and recover in ejectment, when no one was in actual possession, the law would presume the purchaser in possession. That, however, was a suit on a note for the purchase-money of a tract of unseated land sold for taxes, and the defendant contended that the plaintiff's title under a commissioner's sale in 1806, was not good, because the five years' limitation had not expired; but the defendant was in possession of the land, and had never offered to give it up to the plaintiff.1 In a later case, the question was reconsidered, and the decision was, that the five years began to run from the time the purchaser took possession, and not from the sale; because, according to the principles which govern actions of ejectment, the owner could not sue until the tax purchaser took possession.2 (a) And such continued to be the ruling of the supreme court of Pennsylvania,3 until the passage of the statute of March 29, 1824, which authorized the former owner, though in possession of the land, to bring ejectment against the tax purchaser or his grantee, and thus test the legality of the tax sale. Under this statute it is held, that the time commences running from the date of the sale.1 1 Parish v. Stevens, 3 S. & R. 298. 2 Waln v. Shearman 8 S. & R. 357. 8 Cranmer v. Hall, 4 W. & S. 36; Bigler v. Kams, 4 W. & S. 137; McCall v. Himebaugh, 4 W. & S. 164; Bayard v. Inglis, 5 W. & S. 465. Robb v. Bowen, 9 Barr, 71. (a) Under the Arkansas statute, similar in its terms to the Pennsylvania statute, the time begins to run (unless the case come within the saving clause) from the date of the sale, the owner being able, by recourse to a court of equity, to test the title of the purchaser, even though he have not taken possession. Mitchell v. Ettee, 22 Ark. 178. Under the Missouri statute, the time runs from the date of the deed, not from the date of the sale, the possession of the purchaser prior to the date of the deed, being consistent with the continued ownership of the original owner, and not adverse. De Graw v. Taylor, 37 Mo. 310. According to the Wisconsin statute, "any suit or proceeding for the recovery of land sold for taxes" must be commenced within three years from the recording of the tax-deed. Under this statute, if either the owner or the holder of the tax title holds actual adverse possession for three years after the recording of the tax-deed, the one out of possession is barred. If neither has taken possession, the owner is barred, the recording of the tax-deed being for this purpose equivalent to possession. Knox v. Cleaveland, 17 Wisc. 245; Dean v. Early 15 Wisc. 100; Whitney v. Marshall, 17 Wisc. 174. And in ejectment by the grantee in a tax-deed brought more than three years after recording of the tax-deed against a person in adverse possession at time of suit, it was presumed that the plaintiff had had actual or constructive possession for the three years next succeeding the record of the tax-deed, and the action was not barred by the statutory limitation. Gunnison v. Hoehue, 18 Wisc. 268. Where the tax-deed is void on its face, and the land has remained vacant for more than three years after it is recorded, the original owner is not barred. Quære, whether the owner would be barred if the holder of the tax title had occupied for the three years. Lain v. Shepardson, 18 Wisc. 59. The Michigan statute of 1858, providing that a tax-deed recorded two years shall be conclusion, has been held invalid, the method provided for testing the tax title during the two years being unconstitutional. Quinlon v. Rogers, 12 Mich. 168. Section 6 of the Minnesota statute of 1862, provides that an owner must commence an action to test the validity of the proceedings before the sale for taxes or be barred, unless the taxes have been actually paid. Section 7 provides that persons having or claiming title after the sale, adverse to the tax title must commence an action within one year from the recording of the tax-deed or be for ever barred. It was held that those sections did not apply in actions of ejectment, as the holder of the tax title might not enter within the year, and the owner might be barred without having had any opportunity to bring ejectment. And it was further held that if it was intended to make the bringing an action to remove the cloud on his title under the statute, obligatory on the owner in possession, upon pain of losing his estate within a year, it was unconstitutional. Baker v. Kelly, 11 Minn. 480. But section 7 constitutes a valid limitation of an action under the statute to remove the cloud of a tax title. Hill v. Lund, 13 Minn. 451. Tax-deeds void on their face do not give color of title under the Texas three years' limitation law. Kilpatrick v. Sisneros, 23 Texas, 114. But such deeds do give color under the ten years' limitation law of the same State. Wofford v. McKenna, ib. 36. CHAPTER XL. OF COMPENSATION FOR IMPROVEMENTS MADE BY PERSONS IN POSSESSION UNDER TAX TITLES. ACCORDING to the strict rule of the common law, the owner recovers his land in ejectment, without being subjected to the condition or obligation of paying for the improvements which may have been made upon the land by an adverse possessor. The improvements are regarded as annexed to and forming a part of the freehold, and pass by the recovery, to the owner of the latter. Every adverse possessor makes all improvements upon the land at his peril, and, upon eviction, is entitled to no remuneration whatever. It is even held, that they do not constitute such a consideration as will support an express promise by the owner to pay for them. The only instance in which the common-law courts grant any relief to the person who made them, is, where, after a recovery in ejectment, the plaintiff brings an action of trespass for the mesne profits; in which case, it is said that all improvements of a permanent character, which have increased the value of the land, may be treated as an equitable set-off, and the value thereof recouped.2 The rule of the civil law was more equitable in its character. It was, that the bona fide possessor was entitled to be reimbursed, by way of indemnity, the expenses of beneficial improvements, so far as they augmented the property in value.3 The common law proceeds upon the assumption, that it *588 is the duty of government to assist the rightful owner of property in recovering the possession of it, when he has * 1 3 Kent, Com. 334; 5 Johns. 272; 1 A. K. Marsh. 444. 22 Johns. Cas. 441; 1 Johns. Cas. 281; 1 Johns. Ch. 387; 8 Wheat. 81, 82. 3 2 Kent, 336. been unjustly deprived of it; and that he ought not to be clogged with onerous conditions in the prosecution of his remedy; that the improvements may be of such a costly character as to be beyond the ability of the claimant to refund; that he may have a just affection for the property on account of home associations connected with it; that it may have answered all of his necessities and desires in its original state, without the improvements; that the adverse possessor, by the use of reasonable diligence, and cautious inquiry, might have discovered whether the title which he purchased, and upon the faith of which he made his improvements, was clear or clouded; that the maxim caveat emptor applies to the possessor, who neglects to examine into the title before purchasing, and is exceedingly conducive to the security of the rights of the real owner; that the possession was taken and improvements made without the consent of the owner; that they originated in wrong, and that consequently there is no moral or legal obligation resting upon the owner to pay for them. As a general rule, this reasoning is entitled to great weight, but a distinction ought to be made between ignorance and want of good faith. The reasoning of Chief Justice Taney, in Moore v. Brown, is conclusive upon this point.1 A case of great hardship, and which appeals most strongly to the sense of justice of every man, may be thus stated: The Supreme Court of Illinois held, that where a deed - commonly called a quitclaim - purporting only to convey the present interest of the grantor, was executed and delivered at a time when he had no title, in law or equity, to the land, and he afterwards acquired the legal title, the subsequently acquired title enured to the benefit of his grantee. Upon the faith of that decision, a title is acquired to, possession taken of, and improvements made upon land similarly situated. land similarly situated. Afterwards * the Supreme Court overrule their former opinion, an * 589 innocent purchaser is deprived of his land, and the fruits of his labor. Who will say, under such circumstances, that he is entitled to no compensation for lasting improvements, upon eviction? |