lector granted, &c., the said south-half to said Davidson, his heirs, &c.

The deed for the north-half has similar recitals, showing a tax assessed in 1840, a sale in 1841, to John Powell, and a certificate transferred by him to Davidson.

These deeds come within the description of the 96th section. They are made by a collector of the revenue; they are acknowledged and recorded according to law; they purport to be for land assessed for taxes, and regularly sold according to law; and the law enacts that deeds, so made, shall be evidence not only of the grant by the collector, but of the regularity and legality of the sale of the land described therein.

It is easy, by very ingenuous and astute construction, to evade the force of almost any statute, where a court is so disposed. We might say that the expression, "deeds so made by the collector," mean deeds made strictly according to the requirements of all the preceding sections of the revenus law, and decide that only deeds first proved to be completely regular and legal can be received in evidence; and thus, by qualifying the whole section by such an enlarged construction of these two words, and disregarding all the others, evade the obvious meaning and intention of the law. For if you must first prove the sale to be regular and legal before the deed can be received, what becomes of the provision that the deed itself shall be evidence of these facts? Such a construction annuls this provision of the law, and renders it superfluous and useless. The evil plainly intended to be remedied by this section of the act, was the extreme difficulty and almost impossibility of proving that all the very numerous directions of the revenue act, were fully complied with, antecedent to the sale and conveyance by the collector. Experience had shown, that where such conditions were enforced, a purchaser at tax-sales, who had paid his money to the government, and expended his labor on the faith of such titles in improving the land, usually became the victim of his own credulity, and was evicted by the recusant owner or some shrewd speculator. The power of the legislature to make a deed of a public officer

prima facie evidence of the regularity of the previous proceedings, cannot be doubted. And the owner who neglects or refuses to pay his taxes or redeem his land, has no right to complain of its injustice. If he has paid his taxes, or redeemed his land, he is, no doubt, at liberty to prove it, and thus annul the sale. If he has not, he has no right to complain if he suffers the legal consequences of his own neglect.

The plain and obvious intention of the legislature is clearly expressed in this 96th section, that the deed made by a collector of taxes, as authorized in the preceding section, when acknowledged and recorded, should be received in evidence as a good and valid title, and that the recitals of the deed showing that it was made in pursuance of a sale for taxes, should be evidence of the regularity and legality of the sale under and by virtue of that act. The deed being thus made, per se, prima facie evidence of a legal sale and a good title, the court were bound to receive it as such. There is nothing on the face of these deeds showing them to be irregular or void. They are each for a dif ferent portion of the tract or quarter section of land, having known boundaries, according to the plan, of the public surveys; one being for the south-half and the other for the north-half of the quarter section, it required no surveyor to ascertain their respective figure, boundaries, or location.

II. But assuming these deeds to be irregular and worthless, the court erred in refusing to receive them in evidence, in connection with proof of possession in order to establish a defence under the statutes of limitation.

The first section of the act of limitations of Arkansas bars the entry of the owner after ten years. And the thirty-fifth section enacts that "all actions against the purchaser, his heirs, or assigns, for the recovery of lands sold by any collector of the ju dicial sales, shall be brought within five years after the date of such sales, and not after."

Statutes of limitation are founded on sound policy. They are statutes of repose, and should not be evaded by a forced construction. The possession which is protected by them must be

adverse and hostile to that of the true owner. It is not necessary that he who claims their protection should have a good title, or any title but possession. A wrongful possession, obtained by a forcible ouster of the lawful owner, will amount to a disseisin, and the statute will protect the disseizor. One who enters upon a vacant possession, claiming for himself upon any pretence or color of title, is equally protected with the forcible disseizor. Statutes of limitation would be of little use if they protected those only who could otherwise show an indefeasible title to the land. Hence, color of title, even under a void and worthless deed, has always been received as evidence that the person in possession claims for himself, and of course, adversely to all the world. A person in possession of land, clearing, improving, and building on it, and receiving the profits to his own use, under a claim of title, is not bound to show a forcible ouster of the true owner in order to evade the presumption that his possession is not hostile or adverse to him. Color of title is received in evidence for the purpose of showing the possession to be adverse; and it is difficult to apprehend, why evidence offered and competent to prove that fact, should be rejected till the fact is otherwise proven,

With regard to the five years limitation, we need not inquire whether the legislature intended that the action should be barred, where the purchaser at the tax-sale was not in possession. In this case, possession of more than five years by the purchaser from the collector and those claiming under him, was proved. In order to entitle the defendant to set up the bar of this statute, after five years adverse possession, he had only to show that he and those under whom he claimed, held under a deed from a collector of the revenue, of lands sold for the non-payment of taxes. He was not bound to show that all the requisitions of the law had been complied with in order to make the deed a valid and indefeasible conveyance of the title. If the Court should require such proof, before a defendant should have the benefit of this law, it would require him to show that he had no need of the protection of the Statute, before he could be entitled

to it. Such a construction would annul the act altogether, which was evidently intended to save the defendant from the difficulty, after such a length of time, of showing the validity of his tax-title. The case of Moore v. Brown, 11 How. 424, had reference to a deed void on its face, and the consequence of this fact, under the peculiar statutes of Illinois; it furnishes no authority for the decision of the court below in the present case.

The judgment of the Circuit Court is therefore reversed, and a venire de novo ordered.

INDEX.

ABATEMENT.

1. A plea in abatement of former suit pending in the same court, must, under our
statute, be verified by affidavit, as the truth of the allegation that the cause of
action and the parties were the same in both suits could not appear of record;
though similarity in amount, date, &c., and in names might raise a strong pre-
sumption of the truth of such allegation. White v. Yell, 139.

2. In a criminal case, after plea of not guilty, and verdict, defendant cannot inter-
pose the objection that the grand jury by whom the indictment was found was
composed of a greater number than that prescribed by law; the objection should
be reached by plea in abatement. Such objection, however, does not exist, in
point of fact, in this case. Shropshire v. The State, 190.

3. A plea of former suit pending, is a plea in abatement. Moss v. Ashbrooks et
al., 369.

4. Pleas in abatement should be framed with the greatest accuracy and precision.
They should be certain to every intent; without any repugnancy, and direct and
positive in their allegations, and not argumentative. Ib.

5. A plea to a bill in Chancery that a former bill had been brought for the same
matters, a demurrer sustained thereto, an appeal to the Supreme Court prayed
and granted, by which the jurisdiction of the case was transferred to the Su-
preme Court where the matters arising upon the bill had not been adjudicated
or determined, is not a good plea of former suit pending. The plea should al-
lege specifically that the appeal had been regularly certified to the Supreme
Court, and was still therein pending. Ib.

6. To constitute a decree in Chancery, dismissing the cause, a bar to a subsequent
bill for the same matter, between the same parties, there should be a decision
upon the merits. Ib.

7. In this case a demurrer was sustained to the first bill, and complainant decli-
ning to amend, the bill was dismissed: HELD, that such a decree could not be
pleaded as a bar to a second bill for the same matter. Ib.

8. A disqualification of a grand juror is good cause for challenge before an idict-
ment is found; or a plea in abatement before the trial; but it is too late to make
such objection after verdict, Fenalty v. The State, 630.