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under, in good faith, confers a good prescriptive title; Code Ga., § 2683, providing that adverse possession, under written evidence of title for seven years, shall give title by prescription. Millen v. Stines, 81 Ga. 655; 8 S. E. Rep. 315.

Patents, etc.: A void patent' or certificate for lands; a certificate of purchase of swamp land under the California civil code, declaring it "evidence that the holder is the owner of the tract therein described, and entry thereunder in good faith, and using the same for grazing purposes, constitutes constructive possession even if the land is not inclosed," have been held to be sufficient color of title upon which to found a defense under the statute of limitations.

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Wills: And so it has been held with a bequest of land under a will;' although the will is only that of a life tenant,* or is merely a paper purporting to be a will and proved many years before, a probated will devising land held by the testator under claim of adverse possession and payment of taxes for nine years before his death, to his widow and children, who continue in possession and pay taxes, is sufficient color of title in Illinois to establish, after the lapse of seven years, their legal ownership, there being no proof of bad faith.'

1 Logan v. Jelks, 34 Ark. 547. ? Hannibal, etc., R. Co. v. Clarke, 68 Mo. 371.

3 Goodwin v. McCabe, 75 Calif. 584; 17 Pac. Rep. 705. The proprietors of East Jersey patented by metes and bounds a tract of land between the Shark river on the north, and Atlantic ocean on the east, including sedge banks lying opposite thereto in the Shark river. The survey did not inIclude by its eastern line all the land to the ocean; but shortly after the patentee conveyed the land to W. as being "bounded on the north by Shark river, and east by the Atlantic ocean," and W. and his grantee, the complainant, had open and exclusive possession of all the land to the ocean for more than seventy years; and then defendant surveyed and took up from

the proprietors the land lying between the eastern line of the survey on which the patent was based and in ocean, whereupon complainant filed a bill to quiet title against him. Held, that complainant's possession of the land in dispute was adverse and under color of title, and that title would be quieted in him, Ocean Beach Ass'n v. Yard (N. J.), 20 Atl. Rep. 763; Am. Dig. 1891, 54.

Henly v. Wilson, 81 N. C. 405; see Green v. Mizelle, 54 Miss. 220.

Evans v. Satterfield, 1 Murph. (N. C.) 413; see Teabout v. Daniels, 38 Iowa, 158; also Callender v. Sherman, 5 Ired. (N. C.) 711.

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SHERIFF'S DEED AS COLOR OF TITLE.

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Under the laws of descent, title by descent' and the holding of the heirs of a party who held under claim of title, have also been held as sufficient.

Under proceedings of courts, officers, etc.-A void decree of court; a claim based upon condemnation of lands, where the proceedings are void; memoranda regularly made by a sheriff in a book kept for that purpose, of a sale of land, the officer being dead, have also been held as sufficient color of title."

§ 95. Examples-A Sheriff's Deed as Color of Title.—In Illinois it is not necessary that a sheriff's deed should be preceded by a judgment and precept before it can be used as color of title. The party relying upon it as color of title is not bound to show that the prerequisites of the statute have been complied with. Any deed that purports on its face to convey the title to land is color of title if received by the party in good faith, and it is wholly immaterial whether it is preceded by any valid judgment and execution or precept. It

'King v. Rowan, 10 Heisk. (Tenn.) thereunder purports to be of the en

675.

2 Teabout v. Daniels, 38 Iowa, 158. Huls v. Buntin, 47 Ill. 396: Whiteside V. Singleton, Meigs (Tenn.), 207.

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tire interest in the land, the deed is color of title against all the devisees. The doctrine of tenancy in common can not be applied to the purchaser in such case. McCulloh

Mississippi, etc., R. Co. v. Deva- v. Daniel, 102 N. C. 529; 9 S. E. Rep. ney, 42 Miss. 555.

Field v. Boynton, 33 Ga. 239. Land belonging to the estate of a testator was sold by the administrator by order of court in 1866, the widow becoming the purchaser, and thereafter holding the land under such sale until she sold the same to other parties. Held, that though the order of sale may have been void, the deed in pursuance thereof, for which the widow paid a valuable consideration, is sufficient color of title to make her possession, and that of those claiming under her, adverse to the heirs. Balkham v. Woodstock Iron Co., 43 Fed. Rep. 648 (1891). Where an order of sale of the land of a decedent to pay debts is made without service of any process on certain of the devisees, and the sale

413 (1889). Proceedings for condemnation of land instituted by a railroad company in the commissioners' court, even though invalid for irregularities of procedure, constituted color of title, under which the company could adversely hold the premises. Mobile & G. R. Co. v. Cogsbill, 85 Ala. 456; 5 So. Rep. 188 (1889). Where a person, whose possession of land is permissive in its inception, continues in possession until his death, when the land is sold by the administrator as property of the decedent's estate, and a deed purporting to convey the entire estate is executed, the deed constitutes color of title, and possession under it is adverse. Woodstock Iron Co. v. Roberts, 87 Ala. 436; 6 So. Rep. 349 (1889).

has always been held sufficient that the deed purports on its face to convey the title, and is received by the grantee in good faith.'

Illustrations.

In Georgia, a sheriff's deed is admissible in evidence as color of title. although unaccompanied by the execution under which the property was sold. Considering that the sheriff sold without authority, and this is the most that can be presumed from the absence of the fieri facias, and that consequently the conveyance was void, still the court held that, if the purchaser took and held possession under the deed, it was good as color of title. Burkhalter v. Edwards, 16 Ga. 593.

In North Carolina, a sheriff's deed which recited the execution under which the sheriff sold the land, and it appeared that the execution was tested and signed by the deputy clerk instead of the clerk himself, would inure as color of title, notwithstanding the constitution requires all writs to bear test and be signed by the clerks of the respective courts. Den v. Putney, 3 Murph. (N. C.) 562.

In Florida, a sheriff's deed is of itself, or unaccompanied by judgment or execution, a sufficient written instrument upon which to found a claim of title to the premises described therein, and start the running of the statutory period in favor of one entering under it. Kendrick v. Latham, 25 Fla. 819; 6 So. Rep. 871; Am. Dig. 1890, 39.

In Illinois, one who, having purchased vacant and unoccupied land in good faith at tax sale, and obtained a tax deed for it, pays taxes thereon for seven successive years, acquires such a possession by erecting a fence around it as will bring him within Rev. St. Ill., C. 83, § 7, providing that a person having color of title, made in good faith, to vacant and unoccupied land, and paying all taxes thereon for seven successive years, shall be deemed the legal owner, according to the purport of his paper title. v. Hampton, 127 Ill. 87; 20 N. E. Rep. 12 (1889).

Gage

$96. A Tax Deed as Color of Title.-A tax deed, though void upon its face, is sufficient color of title to support an adverse possession to the property therein described,' while a tax certificate is not. The possession under a tax deed which bars a recovery must be continuous, uninterrupted, open, notorious, actual, exclusive and adverse."

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Where a tax deed is relied upon only as color of title in support of the

1 Scott, J., in Winstanley v. Meachem, 58 Ill. 97 (1871); Halloway v. Clark, 27 Ill. 483; Dickenson v. Breedon, 30 Ill. 279; Hassett v. Ridgely, 49 Ill. 202.

2 Hunt v. Gray, 76 Iowa, 268; 41 N. W. Rep. 14 (1889); Getting v. Lane, 17 Neb. 77: Oglesby v. Hollister, 76

Calif. 136; Whittlesey v. Hoppenyan, 72 Wis. 140; Bartlett v. Kauder, 97 Mo. 356; 11 S. W. Rep. 67.

3 McKeighan v. Hopkins, 14 Neb. 364; Bride v. Watt, 23 Ill. 507.

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Armstrong . Morrill, 81 U. S. (14 Wall.) 120.

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TAX CERTIFICATE NOT COLOR OF TITLE.

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statute of limitations, evidence that the deed was not founded upon a proper judgment is immaterial. Lewis v. Barnhardt, 43 Fed. Rep. 854 (1891).

A tax deed, void on its face, is not sufficient color of title to bring possession thereunder within Mansf. Dig. Ark., § 4475, which provides that no action for the recovery of lands, against persons holding them by virtue of a purchase at a tax sale, shall be maintained, unless plaintiff, or those under whom he claims, has been in possession within two years before. Redfield v. Parks, 132 U. S. 239; 10 S. Ct. Rep. 83.

Under Rev. St. Ill., 1889, C. 83, § 6, which makes seven years' payment of taxes under color of title constitute good title, the holder of an invalid tax deed, who has paid taxes on the land described therein. for seven successive years, acquires good title thereto as against the former owner, although during part of that time an action of ejectment brought by such former owner has been pending. Miller v. Pence, 132 Ill. 149; 23 N. E. Rep. 1030 (1890).

Although the tax deed under which the occupant claimed contained a recital showing that the assessment under which the tax sale was made was invalid, yet since it contained all the other requisites of a good deed, including a sufficient description of the land claimed under it, it was as effective as notice of the extent of defendant's possession and claim as if the objec tionable recital had been omitted. Wilson v. Atkinson, 77 Cal, 485; 20 Pac. Rep. 66 (1889).

$97. A Tax Certificate Not Color of Title.-The term. "color of title" means a deed or survey of the land placed upon the record of land titles, whereby notice is given to the true owner and all the world that the occupant claims the title. If the title under which a party relying upon possession, claims, and originally entered, be so defective as to convey no title, yet the adverse possession will not be affected by the defects in such title; that is, a grantee who occupies real estate as owner, under a deed which fails to convey the title, for such length of time that the bar of the statute is complete, will have a perfect title by adverse possession.' But the instrument, whatever its name may be, must purport to convey the title. A tax certificate does not purport to convey the title. It is merely evidence of the purchase of the land, and a certain statutory period allowed the land owner to redeem, until the time for redemption has expired; the purchaser has no interest in the land except, perhaps, his lien for the taxes paid. But when the time for redemption has expired he may, upon his compliance with the statutory provisions, have his deed; this deed is

13 Wash. Real Prop., 154.

Jackson v. Todd, 2 Caines (N. Y.), 183; Jackson v. Sharp, 9 Johns. (N. Y.) 162; Jackson v. Waters, 12 Johns.

(N. Y.) 365; La Fromboise v. Jackson, 8 Cow. (N. Y.) 589.

3 Snell v. Iowa, etc., Co., 59 Iowa, 701; 13 N. W. Rep. 848.

commonly called a tax deed and is sufficient for color of title even if too defective to convey the title.'

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$98. What Has Been Held Not To Be Color of Title.-A sale of a life estate as against the reversioner does not constitute color of title and so a record of a survey does not of itself constitute color of title. The same is true of an executory contract,' an assignment of homestead," a tax certificate," and an invalid tax lease,' a void judgment of a court and a pre-emption claim, although it may be in the language of the act, providing that "such evidence of right to land recognized by the laws of the government" as would maintain trespass to try title, yet, until it is perfected, it is neither such title nor color of title as can support limitation.' Proceedings in administering and settling the estate of a person represented to be dead but actually still alive, are void for all purposes, and an entry and continuous occupation under such proceedings, exclusive of any other right, will not bar an action to recover the land." A deed which does not contain the description of the land," an instrument in which the grantor admits the title in another," and the record of an ejectment suit when a defendant has successfully defended possession, are not color of title to support adverse possession." A deed to a tenant in possession from one who has no title to the land is void, and insufficient as a basis for adverse possession." Where the father and mother of a woman who died seized of land, executed to a wife and her husband a deed, which mentioned decedent as the "wife of R." and recited that the grantee's wife "was the daughter of" decedent, and that the grantors were decedent's heirs, and conveyed all the lands

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8 Melia v. Simmons, 45 Wis. 334: see Huls v. Buntin, 47 Ill. 396; Whiteside v. Singleton, Meigs (Tenn.), 207.

Buford v. Bostwick, 58 Tex. 63; Clark v. Smith, 59 Tex. 275.

10 Melia v. Simmons, 45 Wis. 334. 11 Humphreys v. Hoffman, 33 Ohio, St. 395; McDonough v. Jefferson Co. (Tex.), 15 S. W. Rep. 490 (1891).

12 Simmons v. Lane, 25 Ga. 178. 18 Hickman v. Link, 97 Mo. 482; 1 S. W. Rep. 12; 10 S. W. Rep. 600.

14 McRoberts v. Bergman, 57 Hun. 591; 11 N. Y. Sup. 108 (1890).

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