Keefe v. Bramhall

delivered the opinion of the court.

This is a bill to quiet the title to the west half of lot 3 in square 780. The bill was filed the 19th of September, 1883. The plaintiff claimed under a tax title, and some mesne conveyances. The defendants claim under the real title. The property was vested in James S. Stevenson in his life time, and he died about the year 1811, seized. The defendants are all heirs at law of James S. Stevenson. It is a claim, then,- of the party who holds the tax title under the corporation of Washington against the heirs who hold the real title.

The tax title is briefly this: This piece of property was sold for $1.42, in the year 1827, for taxes due for the years 1824, 1825 and 1826. No tax deed was ever made for this property to the purchaser for thirteen years, and then, in 1841, the tax deed was made in pursuance of the sale which took place in the year 1827, and no possession was taken by the purchaser, or by any person claiming title under this tax sale, until 1870. The tax title had passed by many conveyances through different hands, amongst others William B. Todd, well known in this District as a dealer in tax titles. In 1870 these plaintiffs took possession of the property.

*567The lot lay out in an unimproved part of the city, and although we have no evidence of the .fact, it is very probable, from the lights we have, that the intermediate taxes, after the tax sale in 1827, had been paid by either the original purchaser at the tax sale, or by those who claim under the purchaser. There is no evidence that these heirs ever paid the taxes, which were very small. The bill does not aver that this was a valid tax sale, and there is no proof to establish its validity. But the theory of the bill is that, whether the tax sale was valid or not, the deed under it gave a colorable title. It was necessary, if the plaintiff relied upon the validity of the tax title, that he should show it. A tax deed of itself proves nothing. There are statutes in some States which declare that a deed given by an officer who is authorized to give a tax deed, gives a title prima facie good. But we have no such law. In this District, a man who claims under a tax title must show it to be good just as a man who claims under a deed from the marshal cannot make out any title on the face of the deed. The marshal’s deed itself gives no title, because the marshal is acting under an authority, and his authority to make a deed must be shown, and to establish that authority it is necessary to give in evidence the judgment and the execution, and show the authority of the marshal to make the deed. So in regard to a public officer who sells property for the non-payment of taxes. His deed, on its face, amounts to nothing. His airthority for making the deed must be shown; otherwise it is a void act.

As we have said, the bill does not aver a good tax title. It is merely claimed that it was a colorable title. But a color-able title is generally a void title in itself. A party who claims to enter under color of title, and by length of adverse possession gains a good title, will hold according to the metes and bounds set out in his colorable title, and that is the only effect of his color of title. The entry in the first instance may be that of a mere trespasser, without colorable title, but if he remains in adverse possession twenty years he gains a title — but his title is only for exactly the land that he *568claims and stands upon — that lie has actual possession of But if lie bad entered under a color of title, and bis deed sets out by metes and bounds the- property, then bis possession of a part of tbe land would extend in contemplation of law to the whole, if he bas possession long enough to give him title to tbe whole tract.

It is a very liberal concession to tbe complainant in this case to say that be has a colorable title. For if tbe face of tbe tax deed shows that it was absolutely void it does not even give color of title, and in this case there is strictly nothing to show that this tax deed amounts to anything at 11. But assuming that the complainant has a color of title, as it is claimed, it is only colorable, for he has made out no title under the tax deed. The fact that he has a tax deed, that the tax deed was recorded and that he has paid the taxes on the property, is no proof of title at all as against the real owner. In this case there was no actual possession until the year 1810, and from that date we have thirteen years of adverse possession by the complainant. But thirteen years of adverse possession does not make a title. It requires twenty years of adverse possession to make a good title, and that possession must be open, notorious and actual, not constructive. Payment of taxes does not amount to adverse possession; nor does recording a deed amount to it, and for the reason that it is not visible? open and notorious, and more it is not actual. There is not an authority in the books which supports or gives countenance to the pretext that a man can be ousted of the title to his property by some other person paying his taxes, and by simply getting a tax deed for the land. The tax deed must either be valid or there must be actual, open, notorious, visible adverse possession against all the world for twenty years. It is not necessary that a mere fence should be about it, but there must be actual, open and notorious possession of the property.

We do not find the statute, which is in force here, in regard to adverse ¡Dossession either in Thompson’s Digest or in Kilty’s Laws of Maryland. Our statute is the statute of *56921 James, ch. 1, sec. 16. It is to be found in Alexander's British Statutes, but you will not find in Thompson’s Digest or Kilty any statute on the subject of adverse possession. The statute of James declares that no man shall be deprived of his right to enter upon his land except by afi adverse possession of twenty years. Some of tbe States have their own statutes upon the subject which prescribé twenty-one years, but we have no statute of our own except this English one, which has always been held to be in forcé •here. In this case there has been an adverse holding for thirteen years only. So that there is no title by adverse possession. .

To meet these difficulties, the complainant avers that he has a right to be considered in possession of the property, because the tax deed was recorded in 1841, and that gives him color of title, and that he has been paying taxes upon the property himself, and those under whom he claims have also paid taxes ; but that cannot eke out adverse possession, because the payment of taxes and the recording of the deed are no part of adverse possession. The complainant, therefore, so far as this court can see, has no title upon this record, either under the tax sale or by means of adverse possession. That is enough to dispose of this case, but we wish to say something about these applications to quiet title, in regard to which courts have always been very exact.

Courts of equity will never interfere between two claimants to a piece of real estate, for the purpose of quieting title, unless the complainant shows a clear and indisputable title, but will leave him to any other remedy that he may have.

In Alexander and others vs. Pendleton 8th Cranch, 462, Chief Justice Marshall says that “the prayer of the bill ought not to be granted in a doubtful case ” to quiet title. And in Orton vs. Smith, 18th Howard, 265, Mr. Justice Grier says : “ Those only who have a clear, legal and equitable title to land, connected with possession, have any legal right to claim the interference of a court of equity to‘give them peace or dissipate a cloud upon the title.''

*570It is a mere flight of imagination, upon the part of counsel for complainant in this case, it seems to us, to assume •that there is shown in this case such a clear, legal and equitable title to the property in question, accompanied by possession, as to call for the intervention of this court. It is said that the court should interfere in a case of this kind, where the plaintiff has possession, for the reason that he cannot bring an action of ejectment. He cannot bring the case to issue, but must stay there in possession and wait an attack from the other party. In other words, being in possession, he must either stay until adverse possession completes his title, or he must be without a remedy.

- Well, that is an appeal which might be made to the legislature, and we see, in looking through the cases, that in oné of the States — the State of Ohio — they have a statute which meets the case. There any party in possession who wishes to clear his title may, without waiting for the completion of his title through adverse possession, file his bill against all persons whom he may name whom he charges with having adverse claims, and he can bring them into court for the purpose indicated, at any time. That probably is a very salutary statute; but we have no such law here.

Purchasers at tax sales have never been very much favored. Here the original sale was made in 1827 for taxes due in 1824, 1825 and 1826, and this property was sold for $1.42. But the complainant says that he has paid a large sum of money for this property; and it is claimed that this gives him a strong equity. We do not think so; every man who buys under a tax title knows that he is buying something that he is obliged to defend.

Here the original sale was for a dollar and forty-two cents, and no deed was made in pursuance of this sale until 1841. Whether any changes in the tax office took place in the meantime, or whether the officer who made the sale in 1827 was the officer who made the deed, or whether the forms of law were complied with in regard to the sale, in any respect, we do not know, because upon none of these matters have we any evidence, and no court of equity is to presume very *571strongly in favor of a tax title. A party who purchases from others who hold a tax title, purchases, with full knowledge that he is running a risk, and he is bound to know whether the tax title is good or not. He buys with his eyes open. To no person does the rule caveat emptor apply more than-to the purchaser of a tax title. The intermediate owners of this tax title died, and, among others, William B. Todd, and generally when a man dies seized of real estate, and leaves it to his heirs, it is some presumption in his favor. But there is no presumption at all in favor of the validity of a title which is descended from a deceased., ancestor, unless that ancestor died seized. None of these intermediate tax owners of this property ever died seized of this lot.

We think on every ground that the bill ought to be dismissed. That was the decree below, and we affirm the decree.