Wallace

The action is to quiet title, accompanied with a prayer for possession, the complaint alleging that defendants are in possession, claiming an interest in the property, but without right. Judgment for plaintiff, from which, and an order denying a motion for new trial, defendants appeal. Defendant Mary A. Wallace became the owner of the property in fee, April 23,1862. In 1865 the property became delinquent for taxes. Suit was brought under the statute then in force for the recovery thereof, resulting in a judgment and order of sale. At the sale Eli Mayo became the purchaser. The court finds that these proceedings were insufficient to divest the title of Mary A. Wallace. But under these proceedings, and a writ of assistance issued therein, Mayo was put into possession in August, 1865, and “ from that time until March, 1878 (except for a short space of time during the latter part of 1875 and the first of 1876, when John H. Beeves had possession of the front portion of said property), said Eli Mayo had the open, notorious, actual, continuous, and exclusive possession and use of said property, claiming to own it as against the whole world. On March 28, 1878, Mayo conveyed the property…

I concur in the judgment on the following grounds, stated in an opinion prepared in this cause by Mr. Commissioner Hayne: —

“ The trial court gave judgment for the plaintiff, and the defendants appeal. The complaint was probably intended as a complaint in a suit to quiet title, and is sufficient as such. It may also be assumed for the purposes of this opinion to be sufficient as a complaint in *628 ejectment upon title. We shall consider these different aspects of the ease separately.

“ 1. The judgment cannot be sustained as a judgment in ejectment upon title.

“ (a) It is clear that the plaintiff had no paper title. The findings show that ‘on April 23,1862, the defendant Mary A. Wallace became the owner in fee-simple, by means of a proper conveyance to her, of the property in controversy’; ‘ and that the property was sold for taxes in 1865 to one Mayo, to whom a deed was made.’ But it is further found that ‘ the proceedings culminating in the execution and delivery of said deed to Eli Mayo were not sufficient to vest title in him or to divest the title of the defendant Mary A. Wallace.’ This left the paper title in Mary A. Wallace, who retained it until 1876, when she conveyed…