ROSSMAN, J.
This is an appeal from a judgment of the circuit court in favor of the defendants and entered in an ejectment action. In making that statement we realize that the complaint is couched in language suitable for a suit in equity, that the prayer seeks equitable relief, and that the disposition of the cause is stated in a paper entitled ‘ ‘ decree. ’ ’ Possibly the plaintiff, when the complaint was prepared, deemed that its cause was within the purview of § 9-1001, O. C. L. A. But, since the property described in the complaint was in the defendants’ possession when the action was begun, § 9-1001 did not authorize the institution of this proceeding. We are satisfied that this is an action of ejectment and nothing else.
The defendants are seven in number, five having the name of Smith and three the name of Ogle. The Smiths and the Ogles filed separate answers. Both answers deny the paragraph of the complaint which alleges the plaintiff’s ownership of the property. The answer of the Smiths, besides making that denial, alleges that defendants Guy H. and Roy E. Smith purchased the property December 28, 1935, from the sheriff of Marion county and that they received a deed of conveyance December 31, 1935. They further allege that immediately after making the purchase the two Smiths assumed actual, adverse and exclusive possession of the property and that the possession was maintained to and including the time when the answer was filed.
Those averments are followed by a further defense based upon the Short Term Statute of Limitations which protects tax sales. The answers seek no affirmative relief. The reply denies the new matter alleged in the answer. That denial is followed with averments which describe (1) some probate proceedings through which the plaintiff claims it acquired title to the property; (2) a foreclosure suit for delinquent taxes instituted by Marion county in 1934 and a subsequent sale of the foreclosed properties, including the tract with which we are concerned; and (3) irregularities in the foreclosure suit and subsequent sale which the plaintiff claims rendered the latter void.
As already indicated, the circuit court’s disposition of this action is stated in a writing entitled “decree.” We are satisfied that the paper was a judgment and shall so deem it notwithstanding its misnomer. It dismissed the action.
Apparently due to a belief that the writing just mentioned was a decree, its author omitted the preparation of any findings whatever, either general or special. None of any kind was entered. The total absence of findings constitutes error:
State ex rel. v. Bassett,
166 Or. 628, 113 P. (2d) 432 (decided May 13, 1941).
The evidence received during the trial tended to disclose the following concerning the plaintiff’s claim of title.
April 25, 1939, the sheriff of Marion county executed and delivered to the plaintiff a deed of conveyance to this property which had its origin in the following circumstances. In 1926 the then owners of this property signed a promissory note and, in order to secure its payment, executed and delivered to the payee a mortgage which described the property. Later, the mort
gagee died intestate and two individuals by the name of McArthur were appointed administrators of his estate. After their appointment they instituted a suit to foreclose the mortgage, and in due time a decree of foreclosure was entered. Still later the sheriff sold the property and after confirmation of the sale issued to the McArthurs a sheriff’s certificate of sale. About that time it was discovered that the McArthurs had been neglectful of their official duties and that through their neglect the estate had suffered a loss of $3,900. At that point the McArthurs were discharged and the Ladd & Bush Trust Company was appointed administrator de bonis non. Upon those developments the plaintiff, as surety upon the McArthurs’ administrators’ bond, paid the trust company, as administrator, $3,900. Upon a motion made by the new administrator the court entered an order which awarded to the plaintiff by subrogation the rights which the estate possessed against the McArthurs. At the same time the latter assigned to their successor the aforementioned sheriff’s certificate of sale and then the trust company, as administrator, assigned the certificate to the plaintiff by means of a writing which said that the assignment was made “pursuant to an order of the County Court.” The following day the sheriff executed and delivered to the plaintiff his aforementioned deed. It recited at length the circumstances out of which it issued, including a statement that the assignment of the sheriff’s certificate of sale to the plaintiff by the administrator was made “pursuant to an order of the Court.”
Some months before the complaint was filed eighteen individuals signed, executed and delivered to the plaintiff a quitclaim deed which described this property. The relationship of the eighteen grantors to the title is indicated only by the facts which we shall now
mention. Many of them have the same name as individuals described as next of kin and heirs at law of the deceased in the order which appointed the administrators. All of the persons mentioned in that order signed the deed. Likewise two of the grantors have the same name as two persons mentioned in another order as heirs of the deceased. Those two are also mentioned in the order appointing the administrator. The defendants’ brief, in referring to the quitclaim deed, says: “All the heirs did not sign the deed.” That statement inferentially indicates that those who signed were heirs. The above circumstances, in our opinion, justify a belief that those who signed the quitclaim deed were heirs of the deceased. The sufficiency of the quitclaim deed as an instrument of conveyance is not questioned by the defendants. Their only objection to the deed is the one just quoted, “All the heirs did not sign the deed.” The face or premises of the deed contains the names of the three grantors and their spouses, who however, did not sign the instrument. The reason for the missing signatures is not disclosed by the evidence.
Due to the fact that there is in the record brought before us no order authorizing the administrator to assign the sheriff’s certificate of sale to the plaintiff, we shall ignore the assignment and the sheriff’s deed. Our purpose in having mentioned the plaintiff’s payment of the loss sustained by the estate through the McArthurs’ neglect of duty and the subsequent order made by the court, was to indicate that there were circumstances which could properly induce the heirs to sign the quitclaim deed. If the latter did not convey to the plaintiff the title of all the heirs, it at least made the plaintiff a tenant in common with those who did not sign: § 70-205, O. C. L. A. A tenant in common may maintain an action of ejectment for recovery of posses
sion of the property against strangers to the title:
LeVee v. LeVee,
93 Or. 370, 181 P. 351, 183 P. 773; 14 Am. Jur., Cotenancy, p. 160, § 95; 62 C. J. Tenancy in Common, p. 563, § 248. Therefore, the plaintiff had sufficient title to warrant its institution of this action.
We shall now state the facts developed by the evidence concerning the defendants’ alleged title. December 28, 1935, defendants Guy H. and Roy E. Smith purchased this property from the sheriff of Marion county. The deed to them is dated December 31, 1935. It is valid on its face and mentions in one of its Whereas clauses a public sale of real estate held December 28, 1935, pursuant to a tax decree made and entered November 20, 1935. The property is a 30-acre tract enclosed by a fence, and at the time of its purchase the Smiths wired shut the gates which gave access to the property and in other ways assumed possession of it. A few days later they rented the tract to Samuel J. Ogle, who is one of the defendants. June 4, 1936, the two Smiths and the three Ogles signed an agreement whereby the Ogles agreed to buy the property for a consideration of $1,000. The Ogles have been in possession of the property since they rented it. Before beginning this action the plaintiff tendered to the defendants the amount paid to Marion county for the property, the amounts paid in subsequent years for taxes and twelve per cent interest upon all payments. The offers were rejected. The complaint was accompanied by a written tender of the same amounts. No one questions the sufficiency of the amounts.
About three months after judgment had been entered in favor of the defendants, the several parties to this action, acting through their attorneys, entered into a written stipulation and filed it with the pleadings.
The stipulation, bears the title of the circuit court and of this action. It is a part of the transcript on appeal and a copy of it appears in the abstract of record. Omitting the opening paragraph and the signatures at the close, the remainder of the writing reads:
“* *
*
and stipulates as follows:
“That on June 13, 1935, Marion County, State of Oregon, commenced a suit against Max Highstone and numerous other persons in the Circuit Court of the State of Oregon, for Marion County, to foreclose a certain certificate of delinquency issued on November 24, 1934 to said county for unpaid taxes. In this suit there were over 1,100 parties and parcels of real property involved, including the parcel of real estate involved in this action, and which is the same parcel of real property described in plaintiff’s complaint. Certain proceedings were had in such foreclosure suit and on November 20, 1935, a judgment, decree and order of sale were entered. This judgment, decree and order of sale provided in part that the property involved in this action should be sold by A. C. Burk, as sheriff of Marion County, Oregon, for the nonpayment of such delinquent taxes. On December 21, 1935, A. C. Burk, as sheriff of Marion County, Oregon, offered for sale the several parcels of real property referred to in said foreclosure suit, including the property set out in plaintiff’s complaint. On said date defendants Guy H. Smith and Boy E. Smith bid upon said premises and paid to the sheriff $174.74, and thereafter received a deed to the same from the said sheriff.
“It is further stipulated that the suit commenced by Marion County, State of Oregon, against Max High-stone and numerous others in the Circuit Court of the State of Oregon, for Marion County, to foreclose certain certificates of delinquency is the same suit passed upon by the Supreme Court in the case of Smith v. Carlson, appealed from the Circuit Court of the State of Oregon, for Marion County, L. G. Lewelling, Judge, argued and submitted on September 15,1938, the opin
ion being written by Mr. Justice Bean, 160 Or. 282, and that the errors with reference to cost bill exist in this case.
“It is further stipulated that the administrators of the estate of Robert Poinsett or his heirs were not served by Marion County, Oregon, in that suit against Max Highstone and others, but that Mr. Socolofsky, the former owner, was served.
“It is finally stipulated that because of this stipulation a certified copy of the proceedings had in that certain suit referred to herein by Marion County, Oregon, against Max Highstone and numerous others need not be included among the exhibits in this suit, but should the Supreme Court desire to see said file the same can be withdrawn by any of the attorneys in this matter and taken to the Supreme Court for examination.”
It will be observed from the foregoing that reference Is made to a previous decision of this court, and that the reference is accompanied by a statement that “the errors with reference to cost bill exist in this case.”
In the decision to which the stipulation refers
(Smith v. Carlson,
160 Or. 383, 85 P. (2d) 1028), the facts concerning the delinquent-tax foreclosure suit and the subsequent sale, through the combined means of which the tracts of land involved in the Smith suit as well as in the instant action were sold, are mentioned in detail. Since the name of the plaintiff in that suit (Guy H. Smith) is the same as that of one of the defendants in this action, we infer that this defendant was the plaintiff in that cause. A reading of
Smith v. Carlson
shows the following. It was a suit to quiet title to a tract of land which Smith purchased at the sale above mentioned. The sheriff sold that tract, as well as the one involved in the instant action, as the result of a decree entered in an omnibus delinquent-tax foreclosure suit entitled
Marion County v. Max Highstone
et al.
After Smith received his deed he brought the suit just mentioned against Carlson, the defaulted taxpayer. Carlson’s answer was a general denial followed by averments of irregularity in the tax foreclosure suit. At the trial it developed that in the Highstone suit $2.50 costs were assessed against each item of property, concerning which this court (in
Smith v. Carlson)
said:
“There being over 1,100 parcels of property if a charge of $2.50 is made for each parcel, it would amount to $2,750 for publishing a summons the true charge for which was $1,826. * * * The costs of $2.50 taxed against the defendant taxpayers’ property were excessive. The foreclosure proceeding as to it is void. * * *”
As a result, the decision held that the sale and deed were void.
We now quote from the defendants’ brief (in this case) the following:
“We concede that the sale under which the deed was given is voidable. * * * The deed in the instant case is regular on its face, is not void on its face. The only reason it is void is by virtue of irregularities in the foreclosure proceedings.”
During the oral argument defendants’ counsel, as disclosed by the transcript of this court’s reporter, said:
“* * * Be that as it may, and what counsel says about the objection in the cost bill, referred to in his brief, the whole position of the respondents, and all of the respondents, is that even though that tax foreclosure proceeding was void, that by virtue of the fact that the respondents were in possession of the property and held it for a period of time in excess of the statute of limitations, that we have a title, and our court says it is in the nature of a prescriptive title. * * * We do not say we acquired title to the property under what
our Supreme .Court said, (apparently referring to Smith v. Carlson) but our Supreme Court held in Martin v. White, 53 Or., and also in other cases that in an exact situation, even where the sale is void, the defendant's are entitled to recover * * #. Then the court says that is in the nature of a prescriptive title * *
At that point defendants’ counsel read a sentence from
Martin v. White,
53 Or. 319, 100 P. 290, after which he said:
“That is our whole position. In this case they held the tax proceeding to foreclose was void, and then the court said: ‘As an illegal tax title is a nullity, it cannot of itself divest or affect the true title in any way, and the true owner cannot be lawfully compelled to incur expense or take active measures to get rid of it unless he sees fit. But if he becomes ousted, whether by a pretended tax title holder or by any adverse claimant, he can only secure the enjoyment of his rights by active measures, and the party in possession may then rely on such possession until it is lawfully assailed by suit or otherwise within the period of limitation.’ Following out our contention on that, the tax deed given to the tax purchaser at the sale was sufficient upon its face and it constituted color of title and this deed was executed and delivered to the defendants Smith within the last day or two of December, 1935. They immediately recorded it on the same date, and the fore part of January, 1936, they took possession of the property, and that was the basis on which the matter was presented to the lower court and that is the basis on which this appeal has been taken.”
It is clear from the recitals of the stipulation and the admissions made in the defendants’ brief, repeated in the oral argument, that the defendants’ deed is void. Being void, it, of course, conveyed no title to the Smiths.
Although the stipulation was filed after the entry of the judgment, we believe it is fair to infer from the
statement made by the defendants’ counsel in his argument before this court, “that was the basis on which the matter was presented to the lower court” that the invalidity of the defendants’ deed was conceded in the circuit court. The same inference seems warranted by the language of the defendants’ brief, quoted in a preceding paragraph. In other words, the stipulation does not bring before us facts withheld from the trial judge, but merely gives us access to the same facts.
Section 69-845, Oregon Code 1930, said:
“Every action, suit or proceeding which may be commenced for the purpose of determining the validity of a sale of land for taxes, or to quiet the title against such sale or to remove the cloud thereof, or to recover the possession of land so sold, * * * shall be commenced within three years from the date of the sale for taxes by the sheriff, and not otherwise, except in cases where the assessment and taxes for which the land was sold or certificate issued had been paid before the sale, or the land redeemed after the sale, or the lands were not subject to taxation at the time the same were assessed; * * *”
Chapter 470, § 6, 1937 Session Laws, amended the part of the law just mentioned by substituting “two years” for “three years” thus shortening the limitation period of two years. Chapter 485, § 23, 1939 Session Laws, repealed the amended statute. Section 110-920, O. C. L. A., being 1939 Session Laws, chap. 485, § 20, provides for a two-year limitation period.
It will be recalled that the Smiths bought the property December 28, 1935, and received a deed December 31, 1935. The complaint was filed in April, 1939, but it did not include the Ogles as parties. The amended complaint, which included the Ogles, was filed June 13,
1939. Accordingly, more than three years had passed after the Smiths purchased the property and before this action was commenced. Therefore, our Short Term Statute of Limitations, which was invoked by the answer, was available to the defendants. It may.be that the answer would have justified a rejection of all evidence tending to show the invalidity of the tax foreclosure decree, sale and deed. Be that as it may, the invalidity of the deed is admitted, and the cause is before us upon an agreement that the instrument is void. That instrument is now relied upon merely as color of title sufficient to usher in a prescriptive title.
From the foregoing it is observed that the plaintiff held a deed which made it a tenant in common with others, and that the defendants were in possession of the property under a deed, valid upon its face, but void as a matter of law.
The defendants believe that § 69-845 does something more than merely bar actions and suits which are brought after the limitation period; they believe that it is a prescriptive statute. Such being their construction of it, they argue that (1) although their deed is void, it served as color of title; (2) they had hostile, adverse possession for a time longer than the limitation period; and (3) therefore, they acquired title by prescription.
In support of their contention that § 69-845 yields title by adverse possession to one who enters under an invalid tax deed and holds possession under claim of ownership for the limitation period, the defendants cite
Dufur v. Healy,
56 Or. 49, 107 P. 692;
Martin v. White,
53 Or. 319, 100 P. 290; and
Pillow v. Roberts,
54 U. S. 472, 14 L. Ed. 228.
It is true that
Martin v. White
contains statements, repeated in part by quotation in
Dufur v. Healy,
which inferentially support the defendants’ contentions; but neither of those decisions sustained a tax title. Both decisions held the tax-title deeds invalid and sustained the title of the delinquent taxpayers. In the Martin case neither party had possession; in the Dufur case the tax-title purchaser had possession but for less than the limitation period. The statement made in the Martin decision, upon which the defendants rely, was dictum. Its repetition in the Dufur decision was likewise unnecessary. The excerpts from the Martin decision which the defendants quote were made after the opinion had pointed out that the tax deed was void and had stated, “but, the sale to the county being void, the deed alone cannot start the statute of limitations running.” The opinion thereupon added that some decisions hold that a deed valid upon its face is a complete bar after the expiration of the limitation period, but that for a deed void upon its face to have such effect it is necessary that the grantee have possession. In commenting upon that legal principle, the court made the observations and employed the quotations upon which the defendants rely. The Dufur decision, in which the purchaser failed to prove the validity of his deed, cited
Martin v. White
and quoted one of its paragraphs in rejecting the purchaser’s claim that the Short Term Statute of Limitations protected his deed. It will be recalled that he had been in possession for less than the period required by the statute.
Pillow v. Roberts,
supra, is only one of several decisions by the Federal Supreme Court which applied statutes of this general kind. That tribunal, of course, accepts the state court’s
interpretation of the local act. Statutes phrased differently from the one involved in the Pillow case received different treatment by the federal supreme court. We deem it needless to cite the decisions.
In a preceding paragraph we quoted a part of the oral argument of the defendants’ counsel. The quotation which he employed and which begins “As an illegal tax title” was the language, not of this court, but of
Groesbeck v. Seeley,
13 Mich. 329. It was quoted in the Martin decision. The Michigan statute with which the Groesbech decision was concerned read:
“Any description of land bid off to the state at the annual sales, which shall have remained undisposed of for five years from the date when it was so bid off, shall vest in the state an absolute title in fee simple, and no suit of rejectment shall be commenced to recover said lands or title thereto, (or be) sustained thereafter by any person claiming or holding possession or title through any other source; * * *”
The court held the statute invalid. It said:
“This statute does not purport to be a limitation law. It is designed by its express terms to deprive persons of their titles whether in possession or not, by mere lapse of time.”
Having so described the act, the decision shortly employed the language which the defendants’ counsel read from the Martin decision where it is repeated by quotation. But it will be seen that the Michigan statute was neither one of limitation nor of prescription, and that it was in truth invalid. The Michigan court’s language upon which the defendants rely concerned adverse possession as that term is commonly used when prescriptive statutes are under consideration.
We have carefully read not only the four above-cited decisions, but many others. Very little, if anything, is gained by taking note of the general statements found in the decisions to the effect that a void tax deed, if accompanied by possession for the requisite period of time, yields title. Statements to the direct opposite can be readily found. Some courts hold that a void tax deed cannot start the running of the limitation period, others take the opposite view. Many of the decisions differentiate in the application of the statute between deeds void on their face and others in which the invalidity is shown by an examination of the proceedings which preceded the execution of the deed. The statutes differ in their provisions and the several courts, due to local peculiarities in the development of taxation, do not always employ the same interpretation. In fact, a given court at times varies in the construction and application of its statute. Statements of the kind which we have just made can be found in many of the decisions and textbooks. We quote the following from an annotation in 23 L. R. A. (N. S.) 1102, which accompanies
Florida Finance Co. v. Sheffield,
56 Fla. 285, 48 So. 42, 16 Ann. Cas. 1142:
“But few jurisdictions have a special statute of limitations which begins to run from the time of possession. It would seem from the cases gathered that the question here annotated is not altogether free from difficulties, and even within the same jurisdiction presents some differences of opinions.”
The same observation appears in many other annotations and in some of the decisions.
It is not unworthy of notice that many of the statements which declare that Short Period Statutes of Limitations are prescriptive in character appear in
decisions which rejected the tax title purchaser’s alleged rights. Many of them failed to take note of the differences in the various statutes; see, for instance, the annotation appearing at page 550 of
22
A. L. R.
We now return to our statute. We have already quoted the words of § 69-845 and have mentioned the fact that it was amended in 1937 and replaced by another act of substantially the same kind in 1939. Since the 1937 amendment introduced a change of no consequence to our present purposes, we have been referring to § 69-845 as though it remained unamended. 'We shall continue to do so. It will be recalled that § 69-845 does not protect all tax sales. Roughly speaking, it excludes instances where the tax was paid, the land was redeemed or the property was not subject to taxation. Evidently it rejects sales in those instances as void and, therefore, refuses to afford protection to them.
By reverting to the language of § 69-845, it will be seen that it enables a tax-title purchaser to defend his title whether he have possession or not, and whether he is plaintiff or defendant. Again, § 69-845, by rendering it possible to plead the statute in “every action, suit or proceeding * * * for the purpose of determining the validity of a sale of lands for taxes, or to quiet the title against such sale or to remove the cloud thereof, or to recover the possession of lands so sold * * does not limit the application to proceedings for the recovery of possession. Statutes which concern themselves with possessory actions only, by necessary inference, demand that the tax purchaser be in possession of the defaulted property. But our act does not demand that the purchaser have possession. It is equally applicable if the foreclosed taxpayer is in possession.
We now quote from our general Statute of Limitations, § 1-202, O. C. L. A.:
“The periods prescribed in the preceding section for the commencement of actions shall be as follows:
“Within ten years, action for the recovery of real property, or for the recovery of the possession thereof; and no action shall be maintained-for such recovery unless it appear that the plaintiff, his ancestor, predecessor or grantor was seized or possessed of the premises in question within ten years before the commencement of such action; * * *”
Most of the judicial statements which declare that a defective tax deed, if accompanied by adverse possession for the limitation period, confers vested rights or title were made in states having short term limitation statutes which demanded that a purchaser have possession. In that respect they have similarity to § 1-202, O. C. L. A., just quoted. For instance, General Statutes of Florida, 1906, § 591 (see
Florida Finance Co. v. Sheffield,
supra,) says:
“When the purchaser of land at a tax sale goes into actual possession of such land, no suit for the recovery of the possession thereof shall be brought by the former owner or claimant, his heirs or assigns, or his or their legal representatives for the recovery of the possession of such land, unless such suit be commenced within four years after the purchaser at such tax sale goes into possession of the land so bought; * * *”
The Illinois act (see p. 552 of 22 A. L. R.) Jones Illinois Statutes, 107, 264 reads:
“Every person in the actual possession of land or tenements, under claim and color of title made in good faith, and who shall, for seven successive years, continue in such possession, and shall also, during said time, pay all taxes legally assessed on such land or
tenements, shall be held and adjudged to be the legal owner of said lands or tenements, to the extent * *
The Michigan statute, as quoted in
Pence v. Miller,
140 Mich. 205, 103 N. W. 582, follows:
“No sale of any lands or deed made by the auditor general under the provisions of this act shall be set aside or annulled by any court of this state after the purchaser, his heirs or assigns, have been in actual and undisputed possession of such lands so sold or conveyed for a period of five years from the date of such purchase or deed. * * *”
The difference between § 69-845, Oregon Code 1930, and § 1-202, O. C. L. A., is evident. The same is true of the difference between § 69-845 and the statutes of Florida, Illinois and Michigan just quoted. Those three statutes and § 1-202, unlike § 69-845, are not self-sufficient. They must unite with possession in the favored party in order to yield title to him. Such statutes and others of like kind, as a matter of public policy, prefer a title claimant who has maintained his possession to another who, over the limitation period, has done no more than to possess his title papers. The purpose of closing the judicial ear to him is not for. his punishment, but for the protection of the person in possession. For the latter’s protection the law indulges in, or rather creates, presumptions favorable to his claim of title. See § 2-407, subd. 38, O. C. L. A. The purpose of statutes like § 69-845, which do not concern themselves with possession, is quite different. They are auxiliary to the taxation and revenue measures of the state. Although the law of adverse possession had its origin in the remote past before government made provision for the recording of title instru
ments, laws like § 69-845 endeavor to cnt through the maze of technicality which has developed around sales and deeds based upon defaulted taxes. They are intended to spur on the defaulted taxpayer to a prompt assertion of his claims of invalidity, if he has any. In order to coerce him into speaking promptly, they threaten him with silence if he neglects to assert his rights, either as plaintiff or as defendant, within the limitation period. In this way they close the period in which a defaulted taxpayer can pay his delinquent sums, and help to establish title in some person to the derelict property so that it will return to the taxation rolls as promptly as possible. Thus it is seen that the inception of the law of adverse possession and of acts like § 69-845 was different, and it is also seen that the purpose of the two laws is not the same.
The above quotations from the Florida, Illinois and Michigan statutes were not intended as an indication that there are no other short period statutes of limitation, or that all others are similar to those three. The Washington statute (§ 162 Rem. Rev. Stat., § 8167 P. C.) follows:
“Actions to set aside or cancel the deed of any county treasurer issued after and upon the sale of lands for general, state, county or municipal taxes, or for the recovery of lands sold for delinquent taxes, must be brought within three years from and after the date of the issuance of such treasurer’s deed; * * ”
Although we have carefully searched the Washington Reports we have found no decision which deemed this statute as prescriptive in character, though
Ward v. Huggins,
7 Wash. 617, 32 P. 740, 1015, 36 P. 285, contains a brief dictum to that effect.
It is our belief that § 69.845 and its successors are not of a prescriptive character. They are statutes of limitation only. They serve as shields and are not retrievers. As shields they render it impossible for the holder of the better title to prove it. That is their sole function. They do not reward the tax purchaser with a perfect title by presuming in his favor a lost grant. The protection which they afford is not dependent upon possession; and the latter, if present, does not alter the nature of the statute nor increase the protection it affords.
The above being our construction of the statute, it follows that the defendants’ rights were dependent solely upon the validity of their deed; and, of course, when they conceded that under this court’s holding in
Smith v. Carlson,
supra, the deed was void, it followed that the defendants had no title to the property.
The cause will be remanded to the circuit court with instructions to enter judgment for the plaintiff. The sums tendered to the defendants in the aforementioned writing should be paid to them.
Rand, J., concurs in the result.
Belt, J., did not participate.