Lockridge v. Daggett

Adams, J.

The petition avers that the plaintiff is the owner of the property and that the defendants unlawfully keep him

l. tax deed: limitations, out of possession. The facts averred in the second division of the answer and admitted by the demurrer are that the plaintiff’s title, whatever he has, is derived through a tax deed which was recorded September 22, 1869, and that the action was commenced December 30, 1875. The question presented is as to whether the fact that the defendants were in possession at the time the action was commenced, and the further fact that the action was not commenced within five years from the recording of the tax deed, are sufficient to defeat the tax title. We think they are not.

This case differs from Barrett v. Love, decided at the Decomber term, 1877, in this, that in that case the defendant held the patent title and took possession before the expiration of the five years. In this ease, so far as the second division of the answer is concerned, the sufficiency of which we are considering as a defense, we must assume that the defendants are strangers to the title, and did not take possession until after the lapse ’of the five years from the recording of the tax deed. It is urged by defendants that it may be presumed that they were in possession before the lapse of the five years, but we see -nothing upon which to base such presumption. We know of no rule of law which would justify us in presuming that because the defendants were in possession on the 30 th day of December, 1875, they were in possession on the 22d day of September, 1874. It appears to us, therefore, that if we should sustain the ruling of the court below we should hold, virtually, that the holder of a tax title cannot recover possession as against a stranger who takes possession after the- lapse of five years from the recording of the tax deed, and such, we think, is not the law.

If the second division of the answer is not to be taken as .a complete defense, but was designed to be .taken with other parts of the answer, then a different question would be presented. In such case a demurrer was improper, and should have been stricken from the files on motion. The division, however, is numbered and denominated another and further defense. The -plaintiff in demurring assumed that it was-pleaded as a complete defense, and the defendant, by proceeding to a hearing upon the demurrer instead of moving to strike the demurrer from the files, admitted that it was so pleaded.

In our opinion it was not sufficient as a defense, and the demurrer thereto should have been sustained.

Beversed.