By the Oowrt,
Cole, J.
The only question we have to consider in this case, is whether the defendant had such possession of the premises sought to be recovered, as to bar the plaintiff’s right of action. It appears that the plaintiff, upon the trial, introduced and offered in evidence a patent from the "United States for certain lands, of which the premises in controversy were a part, to James D. Doty and Stevens T. Mason, dated August 10th, 1837, and traced his chain of title from this patent, through a number of mesne conveyances, to the decedent of the plaintiff. Some of these conveyances were executed while the defendant and her husband were in possession of the premises, claiming to hold them under a tax title. The defendant, to defeat a recovery, offered in evidence this tax deed, which bore date December lOili, 1841, purporting to be made [534]*534and executed by R. L. Ream, clerk of the board of county commissioners of the county of Dane, reciting that the premises had been sold for the taxes for the year 1839, unto Daniel Wells, Jr., and that the certificates had been assigned to Prosper B. Bird, the husband of the defendant, and the person to whom the tax deed was given. To the reading of this latter deed in evidence, the counsel for the plaintiff objected, on the ground that the deed was void on its face; but the court decided that although the deed was void on its face, because the territory of Wisconsin is not the grantor therein; and because the deed did not convey title to said premises, yet that the same might be received in evidence for the purpose of showing col-orable title ; and the deed was read to the jury under an exception taken by the plaintiff. In connection with the deed, the defendant proved that Prosper B. Bird, from and after the date thereof, and by virtue of the deed, claimed to hold, and did hold, possession of the premises, until his death in the year 1852; and further proved that she and her family had occir|?ied the premises since the death of her husband until the commencement of this suit. Bpon the evidence submitted the jury found a verdict for the defendant. The plaintiff moved for a new trial, which motion the court overruled, and the principal error assigned here, is the ruling of the court admitting the tax deed in evidence for any purpose whatever.
Among the deeds offered in evidence by the plaintiff to establish his right to recover, was the deed from Doty and wife to Delaplaine and Burdick, dated May 8th, 1849, executed while Bird was in possession of the premises, claiming to hold them under his tax deed, and therefore the former deed, given as it was by one out of possession, was void as against Bird holding adversely, according to the decision of the late supreme court in the cause of Whitney vs. Powell, 1 Chand., 52, and Woodward, et al. vs. McReynolds, Id., 244. A reconsideration of the doctrine of those cases has been pressed upon us by the counsel for the plaintiff in error, in view of the force and meaning of section I, page 239, of the Revised Statutes of the territory of Wisconsin, which provides that “ whenever it shall [535]*535appear that the occupant, or those under whom he claims, entered into the possession of any premises under the claim of title, exclusive of any other right, founding such claim upon some written instrument or as being a conveyance of the premises in question, or upon the decree or judgment of some competent court, and that there has been a continued occupation and possession of the premises included in such instrument, decree or judgment, or of some part of such premises under such claim for twenty years, the premises so included shall be deemed to have been held adversely; except that when the premises so included consist of a tract divided into lots, the possession of one lot shall not be deemed the possession of any other lot of the same tract.” We do not suppose this provision of the statute in any wise changes or modifies the common law in reference to the sale of pretended titles to real estate, and which makes a conveyance by a party out of possession and with an adverse possession against him void. The obvious import and meaning of the provision appears to be to declare what facts and circumstances in a given case, shall constitute, and be deemed to be, adverse possession ; that is, when an occupant enters into possession under a claim of title founded exclusively upon some written instrument or record, and continued in occupation and possession of the premises included in such instrument or record, or of some part thereof, for twenty years, he shall be considered as holding adversely, and can avail himself of the protection of the statute of limitations, even as against the rightful owner of the land. Such a continued occupation and adverse holding would bar an entry by one having the legal title. This is the meaning of this section, as we understand it. We are entirely satisfied with the soundness of the doctrine laid down in the cases of Whitney vs. Powell, and Woodward vs. McReynolds, and have no doubt but they are a correct exposition of the law of the territory of Wisconsin, and of the state, previous to the passage of the Eevised Statutes. Section I, chap. 59, R. S., changes in this respect the common law, which made every grant of land, except a release,' void as an act of maintenance, if at the time the lands [536]*536were actually in the possession oí another person, claiming under a title adverse to that of the grantor. In the present case, it appears to have been proven on the trial, that from the date of the tax deed, and by virtue of that deed, Bird claimed to hold, and did really bold, possession of the premises until his death, in 1852 ; and that the defendant, with her family, has occupied them since that time until the commencement of this suit. The possession and occupation seem to have been actual, continued, and notorious, under the tax deed, and as a matter of course, hostile to the title of the true owner. But it was insisted upon the argument of the cause, by the counsel for the plaintiff, that the tax deed is void upon its face, and therefore was not evidence of colorable title; for it is said, to constitute adverse possession, the person actually holding must claim in good faith under a title hostile to the title of the real owner; that the court must determine by an inspection of the deed or other evidence of title, whether the claim of title was hostile or adverse; and if it appeared that the title paper or contract was not in the nature and form of a conveyance, but showed upon its face that it was a nullity, the claim of title under such an instrument could not be adverse, the presumption being that the person holding knew whether the title paper on its face was good or not, and if it was not adequate to carry the true title, it was evidence of bad faith in the one claiming under it. Although the cases on adverse possession, and the statutes of limitation, are numerous in the boohs, it is not always easy to ascertain and determine what is meant by the phrase, “ color of title.” In the case of Wright vs. Mattison, 18 How. U. S. R., 50, the court upon this subject says:
“ The courts have concurred, it is believed, without an exception, in defining color of title ’ to be that which in apj>earance is title, but which in reality is no title. They have equally concurred in attaching no exclusive or peculiar character or importance to the ground of the invalidity of an apparent or colorable title; the inquiry with them has been, whether there was an apparent or colorable title under which an entry or claim has been made in good faith.
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By the Oowrt,
Cole, J.
The only question we have to consider in this case, is whether the defendant had such possession of the premises sought to be recovered, as to bar the plaintiff’s right of action. It appears that the plaintiff, upon the trial, introduced and offered in evidence a patent from the "United States for certain lands, of which the premises in controversy were a part, to James D. Doty and Stevens T. Mason, dated August 10th, 1837, and traced his chain of title from this patent, through a number of mesne conveyances, to the decedent of the plaintiff. Some of these conveyances were executed while the defendant and her husband were in possession of the premises, claiming to hold them under a tax title. The defendant, to defeat a recovery, offered in evidence this tax deed, which bore date December lOili, 1841, purporting to be made [534]*534and executed by R. L. Ream, clerk of the board of county commissioners of the county of Dane, reciting that the premises had been sold for the taxes for the year 1839, unto Daniel Wells, Jr., and that the certificates had been assigned to Prosper B. Bird, the husband of the defendant, and the person to whom the tax deed was given. To the reading of this latter deed in evidence, the counsel for the plaintiff objected, on the ground that the deed was void on its face; but the court decided that although the deed was void on its face, because the territory of Wisconsin is not the grantor therein; and because the deed did not convey title to said premises, yet that the same might be received in evidence for the purpose of showing col-orable title ; and the deed was read to the jury under an exception taken by the plaintiff. In connection with the deed, the defendant proved that Prosper B. Bird, from and after the date thereof, and by virtue of the deed, claimed to hold, and did hold, possession of the premises, until his death in the year 1852; and further proved that she and her family had occir|?ied the premises since the death of her husband until the commencement of this suit. Bpon the evidence submitted the jury found a verdict for the defendant. The plaintiff moved for a new trial, which motion the court overruled, and the principal error assigned here, is the ruling of the court admitting the tax deed in evidence for any purpose whatever.
Among the deeds offered in evidence by the plaintiff to establish his right to recover, was the deed from Doty and wife to Delaplaine and Burdick, dated May 8th, 1849, executed while Bird was in possession of the premises, claiming to hold them under his tax deed, and therefore the former deed, given as it was by one out of possession, was void as against Bird holding adversely, according to the decision of the late supreme court in the cause of Whitney vs. Powell, 1 Chand., 52, and Woodward, et al. vs. McReynolds, Id., 244. A reconsideration of the doctrine of those cases has been pressed upon us by the counsel for the plaintiff in error, in view of the force and meaning of section I, page 239, of the Revised Statutes of the territory of Wisconsin, which provides that “ whenever it shall [535]*535appear that the occupant, or those under whom he claims, entered into the possession of any premises under the claim of title, exclusive of any other right, founding such claim upon some written instrument or as being a conveyance of the premises in question, or upon the decree or judgment of some competent court, and that there has been a continued occupation and possession of the premises included in such instrument, decree or judgment, or of some part of such premises under such claim for twenty years, the premises so included shall be deemed to have been held adversely; except that when the premises so included consist of a tract divided into lots, the possession of one lot shall not be deemed the possession of any other lot of the same tract.” We do not suppose this provision of the statute in any wise changes or modifies the common law in reference to the sale of pretended titles to real estate, and which makes a conveyance by a party out of possession and with an adverse possession against him void. The obvious import and meaning of the provision appears to be to declare what facts and circumstances in a given case, shall constitute, and be deemed to be, adverse possession ; that is, when an occupant enters into possession under a claim of title founded exclusively upon some written instrument or record, and continued in occupation and possession of the premises included in such instrument or record, or of some part thereof, for twenty years, he shall be considered as holding adversely, and can avail himself of the protection of the statute of limitations, even as against the rightful owner of the land. Such a continued occupation and adverse holding would bar an entry by one having the legal title. This is the meaning of this section, as we understand it. We are entirely satisfied with the soundness of the doctrine laid down in the cases of Whitney vs. Powell, and Woodward vs. McReynolds, and have no doubt but they are a correct exposition of the law of the territory of Wisconsin, and of the state, previous to the passage of the Eevised Statutes. Section I, chap. 59, R. S., changes in this respect the common law, which made every grant of land, except a release,' void as an act of maintenance, if at the time the lands [536]*536were actually in the possession oí another person, claiming under a title adverse to that of the grantor. In the present case, it appears to have been proven on the trial, that from the date of the tax deed, and by virtue of that deed, Bird claimed to hold, and did really bold, possession of the premises until his death, in 1852 ; and that the defendant, with her family, has occupied them since that time until the commencement of this suit. The possession and occupation seem to have been actual, continued, and notorious, under the tax deed, and as a matter of course, hostile to the title of the true owner. But it was insisted upon the argument of the cause, by the counsel for the plaintiff, that the tax deed is void upon its face, and therefore was not evidence of colorable title; for it is said, to constitute adverse possession, the person actually holding must claim in good faith under a title hostile to the title of the real owner; that the court must determine by an inspection of the deed or other evidence of title, whether the claim of title was hostile or adverse; and if it appeared that the title paper or contract was not in the nature and form of a conveyance, but showed upon its face that it was a nullity, the claim of title under such an instrument could not be adverse, the presumption being that the person holding knew whether the title paper on its face was good or not, and if it was not adequate to carry the true title, it was evidence of bad faith in the one claiming under it. Although the cases on adverse possession, and the statutes of limitation, are numerous in the boohs, it is not always easy to ascertain and determine what is meant by the phrase, “ color of title.” In the case of Wright vs. Mattison, 18 How. U. S. R., 50, the court upon this subject says:
“ The courts have concurred, it is believed, without an exception, in defining color of title ’ to be that which in apj>earance is title, but which in reality is no title. They have equally concurred in attaching no exclusive or peculiar character or importance to the ground of the invalidity of an apparent or colorable title; the inquiry with them has been, whether there was an apparent or colorable title under which an entry or claim has been made in good faith. We refer to a few decis[537]*537ions by ibis court, which are deemed conclusive to the point, that a claim to property under a conveyance, however inadequate to carry the true title to such property, and however ' incompetent might have been the power of the grantor in such conveyance to pass a title to the subject thereof, yet a claim asserted under the provisions of such a deed is strictly a claim under color of title, and one which will draw to the possession of the grantee, the protection of tlmstatutes of limitation, other requisites of those statutes being complied with.” The cases of Gregg vs. The Lessee of Sayre and wife, 8 Peters, 253; Ewing vs. Bennett, 11 Id., 41; Pillow vs. Roberts, 13 How., 472, are cited in the opinion of the court. See also the case of Woodward vs. Blanchard, 16 Ill. R., 424, and cases there cited; also the cases cited and commented on in the notes to Taylor vs. Horde, 2 Smith’s Leading Cases, 307, marginal paging.” “ Color of title may be made through conveyances, or bonds and contracts, or bare possession under parol agreements.” In Massachusetts, it is held that where a party enters, not under any deed or written title, but merely assumes possession with claim of right, there is a dissoizen to the extent of the land which he actually occupies, cultivates, encloses, or otherwise excludes the owner from. Small vs. Proctor, 15 Mass., 495; Barton Mill Corporation vs. Bullfinch, 5 Id., 229; Brown vs. Porter, 10 Id., 93; Coburn, et al. vs. Hollis, 3 Met., 125; Sumner vs. Stevens, Id., 337; Slater vs. Rawson, Id., 439. We are of the opinion that the tax deed is sufficient to show color of title in Bird, within the doctrine of the case of Wright vs. Mattison, and many other well considered cases found in the reports, without regard to its intrinsic worth as a title, or the informality in its execution. And we see no reason to doubt the sincerity and good faith of Bird in taking possession of the premises under the deed, and occupying and improving them, and claiming to hold them as against the real owner. lie undoubtedly supposed that the lax deed ivas good, and conveyed to him all the title the territorial government could convey by a tax deed, or he would not have relied upon it and improved the premises. The property, is lots situated i» the [538]*538then village, and now city .of Madison ; and the continued claim of Bird, and his widow, the defendant, has been evidenced By public acts of ownership, such as they would exercise over property they owned in their own right. Ve therefore think the circuit court properly admitted the tax deed in evidence to show colorable title in the husband of the defendant, and the character of that possession. We are clear that this possession was adverse, and that the deed from Doty and wife dated in May, 1849, was null and void and conveyed no title.
But there is another view, which can be taken of this case, equally decisive against the plaintiff, and whjch disposes of both chains of the title attempted to be established by him on the trial. By section 123, chap. 15, R. S., it is provided that “ any suit or proceeding for the recovery of lands sold for taxes, except in cases where the taxes have been paid, or the lands redeemed as provided bylaw, shall be commenced within three years from the time of recording the tax deed of sale and not thereafter.” If any force or effect is given to this provision of law, it must, under the facts and circumstances of this case,. defeat the action. The defendant has possession under a recorded tax deed, and had had possession under such a deed more than three years at the time the suit was brought. The tax deed was given in 1841, and it does not seem very inequitable to apply this statute of repose as a shield to protect the possession of the defendant.
The judgment of the circuit court is affirmed.