
    Magruder v. Esmay.
    1. A patent issued by the United States, in the name of one who had purchased the land, and made entry under the act of Congress of April 24, 1820 (8 U. S. Stat. at Large, 566), inures to the benefit of the grantee and his heirs and assigns, under a quitclaim deed executed by the purchaser before the patent issued. The patent being founded on such entry, relates back, and takes effect from the time the same was made.
    2. A record of a certificate by the county auditor, under the act of March 28, 1840 (1 Curwen, 630), that the delinquent tax list was published for four consecutive weeks prior to December first, does not show a compliance with the provisions of said act requiring the delinquent list and notice of sale to be published for four weeks, between the first day of October and the first day of December.
    
      8. Where the record required to he kept by section 34 of said act, fails to show that lands sold as forfeited to the state for non-payment of taxes were previously offered at delinquent sale and not sold for want of bidders, a deed to the purchaser at such forfeited sale, is invalid.
    4. The provision of the act of May 7, 1869 (66 Ohio L. 338), prescribing what shall constitute conclusive proof of possession in favor of a purchaser at a tax sale, can not constitutionally operate to set the statute of limitations running in favor of such purchaser prior to the passage of the act.
    Error to the District Court of Ottawa county.
    The action below was brought by the plaintiff to recover the possession of the southeast quarter of section 31, township 7, north of range 13 east, and the west half of the southwest quarter of section 32, same township and range, in . Ottawa county.
    A jury being waived, the cause was tried to the court, and judgment given for the defendant. A motion for a new trial, on the ground that the decision was not sustained by sufficient evidence was overruled, an exception noted, a bill of exceptions allowed containing all the evidence, and the cause carried to the district court, where the judgment was affirmed.
    The plaintiff introduced, and claimed title through, the following conveyances:
    “ Certificate, No. 17,223. The United States of America, to all to whom these presents shall come, greeting: Whereas, Alexander M. Porter, of Huron county, Ohio, has deposited, in the general land office of the United States a certificate of the register of the land office at Bucyrus, whereby it appears that full payment has been made by the said Alexander M. Porter, according to the provisions of the act- of Congress of the 24th of April, 1820, entitled ‘an act making further provision for the sale of public lands for the west half of the southwest quarter of section 32, in township 7, north of range 13, in the district of lands subject to sale at Bucyrus, Ohio, containing eighty acres, according to the official plat of the survey of the said lands returned to the general land office by the surveyor general, which said tract has been purchased by the said Alexander M. Porter.’
    “ Now, know ye, that the United States of America, in consideration of the premises, and in conformity with the several acts of Congress, in such case made and provided, have-given and granted, and by these presents do give and grant, unto the said Alexander M. Porter, and to his heirs, the said tract above described, to have and to hold the same, together with all the rights, privileges, immunities, and appurtenances, of whatsoever nature, thereunto belonging, unto the said Alexander M. Porter, and to his heirs and assigns forever.”
    This patent was duly executed and delivered to said Porter on the 5th day of September, 1838.
    A similar patent was issued to Porter, on the same day, on certificate 17,222, for the quarter section above described.
    April 19, 1837, a deed from Porter to Peter J. Arnet, consideration $960, by which deed Porter remised, released, and quitclaimed unto Arnet, and his heirs and assigns forever, all those following-described pieces of land, known and described as the southeast quarter of section number 31, in township number 7, north of range number 13, containing one hundred and sixty acres, as per certificate 17,222, and signed by Joseph H. Larwell, receiver; also, the west half of the southwest quarter of section number 32 (thirty-two), in township number 7, range number 13 north, containing eighty acres, as per certificate 17,223, and signed by Joseph IL Larwell, receiver: Together with, all and singular, the tenements, hereditaments, and appurtenanees thereunto belonging, or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof, and also all the estate, right, title, interest, property, possession, claim, and demand whatsoever, as well in equity of the said parties of the first part of, in, or to the above-described premises, with the appurtenances, unto the said party, to have and to hold the above-granted and described premises, with the appurtenances, unto the said party of the second part, his heirs and assigns, to their own proper use and behoof, forever.”
    September 25, 1837, a warranty deed of said premises, by Arnet to Mary Farrell, wife of James Farrell.
    August 24, 1869, a conveyance by quitclaim, by Mary and James Farrell, by attorney, of all their right and title to said premises, to said plaintiff. It was agreed, by the parties, that no one had ever been in actual possession of said land, and that the same was wild and uncultivated.
    The defendant claimed title to the one hundred and sixty acres, under a delinquent tax sale, made by the auditor of Ottawa county, to William Dougherty, on the 8th day of January, 1844, for the delinquent taxes, and interest and penalty, for 1842, and the unpaid taxes of 1843; and to the eighty acres, under a forfeited sale, made on the second Monday of December, 1847. In support of his title to the hundred and sixty acres, he introduced a tax deed from the auditor of the county to himself, as assignee of the certificate to' Dougherty, which deed was dated February 22, 1848. He also offered in evidence the record of taxes sales, from which .it appeared that said delinquent list was advertised for sale “ for four weeks prior to first of December, 1843.” This was the only evidence of the time the list was published.
    The only evidence that a copy of the notice of sale was inserted at the foot of the record on the delinquent list, and a certificate of the name of the paper, and the length of time the list and notice were published therein, was contained in the following certificate, signed by. the auditor, and attached to said record : “ It is hereby certified that the foregoing list was published for four consecutive weeks prior to the first day of December, 1843, in the Democratic Mirror, at Sandusky City, the same being in general circulation in Ottawa county.” Further evidence was offered by the defendant, tending to show the regularity of said tax sale. It appeared from the evidence, that the eighty acres was sold at the same time to Cyrus Moore, and by proceedings involving the same want of regularity that attended the sale of the one hundred and sixty acres.
    Moore failing to pay the taxes of 1845, the lands were-returned delinquent, and on the second Monday of December, 1847, were sold to the defendant, as lands forfeited to the state, for want of bidders at the alleged delinquent sale of said lands, on the second Monday of the preceding January, and a deed therefor made to him by the auditor. But there was no record of the fact that the land was-offered for sale at the delinquent sale of lands of the preceding January, and that the same remained unsold for want of bidders.
    Evidence also was offered by the defendant, from which the court may have found the existence of the facts, which, under the last 'clause of the act of May 7, 1869 (66 Ohio-L. 338), are declared to constitute conclusive proof of possession in the purchaser at a tax sale, or those claiming-under him; and finding such possession to have continued for twenty-one years, that the defendant had thereby acquired a title by adverse enjoyment.
    
      H. & L. H. Goodwin, for plaintiff in error:
    The deed of the lands from A. M. Porter and wife to P.. J. Arnet, dated April 19, 1837, conveyed all of Porter’s interest. No new title was acquired by the issuing of the-patent. Irvine v. Irvine, 9 Wallace, 625.
    The entry of the land and payment of the purchase-money constitute the title. Myers v. Croft, 13 Wallace, 291; 2 Greenleaf Cruise, 319 ; 20 Ohio, 562 ; Astrem v. Hammond, 3 McLean, 109, 110.
    And Porter is estopped from denying it. Myers v. Croft, 13 Wallace, 291; Lessee of Bond, v. Swearingen, 1 Ohio, 412, 413 ; Kinsman v. Wood, 11 Ohio, 478; Buckingham v. Hanna, 2 Ohio St. 556; Skelly v. Jeff. Branch Bank, 9 Ohio St. 623; 14 Id. 330.
    An assignment of the certificate will be presumed. 16-Ohio, 48.
    
      The deed to Arnet is for a good consideration; it purports to convey all of Porter’s interest, legal or equitable. It refers to the certificates Nos. 17,222 and 17,223 ; and to have and to hold the lands unto the grantee.
    The patents do not recite the date when entered by Porter and paid for. But they state the fact that this had been done before that time — certificates being Nos. 17,222 and 17,223, which are the same certificates recited in the deed.
    In the deed, Porter sells these very lands — says they are “ as per” these certificates.
    He and his grantees are estopped. Douglass v. Scott, 5 Ohio, 198.
    Grant that a party is not estopped by a mere release or •quitclaim. The reason is that he asserts nothing. But if in a quitclaim deed he does assert any thing, he is estopped from denying it. His seal estops him. And it is precisely the same in a quitclaim deed as in any thing else.
    The defendant’s tax title was not good. All the statutory requirements must be complied with in order to render a deed for lands sold at a tax sale valid. Lessee of Carlisle v. Longworth, 5 Ohio, 368; 3 Ohio, 234; Lessee of Holt’s heirs v. Hemphill, 3 Ohio, 233-4; Thompson v. Gotham, 9 Ohio, 175-6; Lafferty v. Byers, 5 Ohio, 450, 369 ; 19 Ohio, 318, where authorities are collected; Lessee of Miner v. McLean, 3 West Law Journal, 4; Jones v. Devon, 8 Ohio St. 430.
    It clearly appears from the above that the burden is cast on the defendant of proving that all the necessary steps have been taken, before the deed shall be held to convey a prima facie title.” 4 Wheat. 77 ; 2 Ohio, 233.
    The auditor is to cause the delinquent list to be published, at least four weeks, between the first day of October and the first day of December, 1843. He certifies that the “ list was published for four consecutive weeks, prior to the first day of December, 1843.” This would be true if he had published for four weeks before the 1st of October, 1843. Lessee of Kellogg v. McLaughlin, 8 Ohio, 114-16 ; 
      Lessee of Parker v. Miller et al., 9 Ohio, 108; Lessee of Thompson v. Gotham, 9 Ohio, 170.
    The act of May 7, 1869 (66 Ohio L. 338), if retroactive, is unconstitutional. Art. 1, sec. 19; art. 2, sec. 28, of the constitution ; S. B. Monarch v. Finley, 10 Ohio, 391; Atchinson v. Miller, 2 Ohio St. 207; Green v. Biddle, 8 Wheat. 175; Bronson v. Kinzer, 1 How. 316; Ogden v. Saunders, 11 Wheat. 213; Hoffman v. Quincy, 4 Wall. 552; 6 How. 327; White v. Hart, 13 Wall. 653; Green v. Barry, 15 Wall. 622; 16 Wall. 314; 12 Ohio, 368; 16 Ohio, 599; 3 Ohio St. 468; 10 Ohio St. 582.
    
      John M. Lemmon, for defendant in error:
    I. That the quitclaim deed from Porter to Arnet does not convey the title Porter got from the United States, I claim is shown by the following eases: 2 Smith’s L. Oases, 721 (6th Am. edition), notes to Duchess of Kingston’s •case; Woodbridge v. Banning, 14 Ohio St. 328; Kinsman, v. Loomis, 11 Ohio, 475, 476-7. The quitclaim conveyed the then present title or right, no more. Edwards v. Varick, 5 Denio, 702; Weidman v. Hubbell, 1 Cowen, 613, 616; Gloon v. Winslow, 9 Cowen, 13-18; Sparrow v. Kingman, 1 N. Y. 247.
    No title not in esse, will pass by deed, unless deed contains covenants of warranty. 3 Washburn Real Prop. 90 (3d ed.), book 3, ch. 2, § 36, par. 17.
    And as plaintiff must recover on the strength of his own title (13 Ohio St. 304), and must trace title from government (Tyler Eject. 541, 1st ed.), he utterly fails (2 Ohio St. 270). He wholly fails to show Porter had any title, legal or equitable, when he executed the quitclaim.
    Esmay claims title to the one hundred and sixty acres by auditor’s deed, through delinquent tax sale; to the •eighty by same through forfeited tax sale.
    I maintain that we show a perfect tax title to the one hundred and sixty acres.
    We claim that when we show that the lands were on the tax duplicate, with a tax against them, were returned delinquent, sold and deed made, that we have done all required of us.
    I think the deed alone makes out our title, until overthrown by evidence from plaintiff. This land was sold under act of March 28, 1840. The 39th section declares the deed shall be . . . prima fade evidence of a good and valid title.
    
    If plaintiff’s argument is correct, then the deed is evidence of nothing, for he says we must prove evety step — listing, assessing, etc., else our deed is no evidence. But if we-prove all these to have been in compliance with law, then this language as to the deed being evidence is useless.
    I believe it is clearly the law of Ohio, that if the things prescribed by the auditor’s act are duly performed, the deed shall have the effect declared in section 39, and the burden is on plaintiff to prove no listing, no assessment, or any thing else beyond or outside of the auditor’s act. Stanberry v. Sillon, 13 Ohio St. 571; 5 Ohio, 370; Douglass v. Dangerfield, 14 Ohio, 522.
    The burden was on the plaintiff to show that the eighty acres was not regularly forfeited. 14 Ohio St. 595.
    II. As to adverse possession :
    This involves the act of May 7, 1869 (66 Ohio L. 338).
    It was proved by defendant and not contradicted, that from and after the sale of these parcels of land, they were put on the duplicate and kept in the name of the purchasers and their assigns: were so continued, and that they paid all taxes thereon, and openly and notoriously claimed title- and ownership of said lands.
    Magruder knew Esmay claimed said lands by tax title; was perfectly familiar with the whole matter. He bought after the act of 1869.
    At common law Magruder would have no title, for the 'lands were in the adverse possession of Esmay.
    "What is this act of 1869 ?
    It undertakes to say what shall be evidence of possession.. It defines adverse possession under tax deeds.
    
      There is nothing in it in the remotest degree violating any constitutional right.
    It is unnecessary to consider how this act would affect the case had Magruder got his deed before it was enacted.
    As to Magruder, there is nothing retroactive in the act. It certainly affected no vested right he had at its passage; .affected no then existing contract.
    I rely on the following authorities, 2 G-allison, 139; Rairden v. Holden, 15 Ohio St. 209; Miller v. Graham, 17 Ohio St. 1; Goshorn v. Purcell, 11 Ohio St. 641; 25 Ohio St. 597; 27 Ohio St. 23; 20 Ohio St. 157; 24 Ohio St. 554; Angell on Lira., § 418; 3 Met. 98; 5 Peters, 402; 3 Wash. R. P. 292; 15 Ohio, 190; Ogden v. Saunders, 12 Wheat. 349; Rich v. Flanders, 39 N. H. 304; Cooley’s Con. Lim. 367 (3d ed.); 1 Ohio St. 393; 5 Ohio St. 225 ; Ehle v. Brown, 31 Wis. 405; Lewis v. McElvaine, 16 Ohio, 347; Trustees v. McCaughey, 2 Ohio St. 155; Simmons v. Hanom, 23 Pick. 188; 16 Ohio St. 11; 17 How. 577.
    There is a distinction between the obligations of contract .and the remedy. Sturgis v. Crowinshield, 4 Wheat. 200; Mason v. Haile, 12 Wheat. 379; Bigelow v. Pritchard, 21 Pick. 174; Willar v. Brown Ass’n, 3 Law & Eq. Rep. 410, 412; Maryland Court of Appeals, Feb. 10, 1877.
    Now let me concede that the obligation of a contract can not be impaired. Then I ask: What contract is at all impaired by the act of 1869 ? Was there a contract between Esmay and Magruder ? or even between Earrells and Magruder?
    It seems to me the real question involved is simple. On May 7, 1869, Esmay owned the tax title under which he •claims. Magruder then had no claim or right. Had Earrells begun suit after May 7,1869, the act would in no manner have affected them. Magruder voluntarily bought with the act before him, and what did he buy? Earrells simply quitclaimed any interest they had in the lands. It is perfectly clear Magruder had no vested right in or to this land on May 7, 1869. It is equally certain that Earrell’s right to bring an action was- in no manner affected.
    
      For the legislature to cut off a mere possibility is not to impair a vested right. It may act on personal rights that' are not vested at the time of the passage of the law. Sedg. Stat. and Const. Law, 510, 511.
    The inchoate right of dower may be abolished. Moore v. The Mayor, 4 Selden, 110; and for other examples, see: Bronson v. Newbury, 2 Doug. (Mich.) 38; Rockwell v. Hubbell, 2 Doug. (Mich.) 197; Morse v. Goold, 11 N. Y. 281; Cooley’s Const. Lims. 287; Watson v. Mercer, 8 Peters, 88; Planter’s Bank v. Sharpe, 6 How. 301; Hawkins v. Barney, 5 Peters, 457, 466; Sedg. Stat. and Const. Law, 659; Patterson v. Gaines, 6 Howard, 550; Pierce v. Tobey, 5 McNeolf. 168; Jackson v. Lamphire, 3 Peters, 290.
    In conclusion, I may say of this act of 1869 : It is not a limitations act. It does not undertake to divest an estate. It does not take away existing rights.
    But it does undertake to prescribe a rule of evidence.
    It may be called sui generis — called for by peculiar exigencies — but is none the less valid. See 5 Peters, 290,291.
    It undertakes to declare that certain things shall, as* against one purchasing from a grantor out of possession, knowing those things, be evidence of possession.
   Boynton, J.

This is a petition in error to reverse the-judgment of the District Court of Ottawa county, affirming a judgment of the court of common pleas, and to-reverse the judgment of the latter court. The only assignments of error, which it is necessary to notice, are, that the coui’t of common pleas erred in overruling the motion for a new trial, and that the district court consequently erred in refusing to reverse the judgment. The first question arising, involves the right of the plaintiff tor recover on the proof offered by him, in the event that it! turns out that the defendant’s alleged tax title is void, and that he acquired no title by adverse possession.

The plaintiff having succeeded to the title of Mrs. Farrell, and a legal estate being essential to the maintainence of the action, the question at once presents itself, whether tbe patent to Porter so far inured to tbe benefit of Mrs. Earrell as to vest in her a legal estate. Had the deed to Arnet been with warranty of title, there is no doubt, that on the receipt by Porter of the patent from the government, an estoppel would have arisen in favor of Mrs. Earrell. Nor is there any doubt that a party is estopped from denying the operation of a deed according to its intent,, where, either by recital, admission, covenant, or otherwise,, it appears that a certain estate was intended to be conveyed.. Rawle on Covenants for Title, 338; Shepard’s Touchstone,. 82.

In Goodtitle v. Baily, Cowper, 597, it was said by Lord Mansfield, that “ the rules laid down in respect of the construction of deeds are founded in law, reason, and common sense. That they shall operate, according to the intention of the parties, if by law they may; and if they can not operate in one form, they shall operate in that, which by law will effectuate the intention.” Where the seizin of an estate is affirmed in the deed, either in express terms, or by necessary implication, the grantor and those in privity with him, whatever be the form of the conveyance, will ever afterward be estopped from denying that he was so seized at the time he made the conveyance. Van Rensselaer v. Kearney, 11 How. 325.

If an estoppel arise in such case, where the grantor assumed to be seized of the estate, a fortiori, should one arise, where he in fact owned the whole equitable interest at the time of the conveyance, with the right to the legal title. There is no doubt from the evidence in the present case, that Porter intended to convey and Arnet to receive the whole interest in the property which constituted the subject-matter of the conveyance.

The deeds referred to the certificates as containing evidence of Porter’s ownership, and in terms conveyed to Arnet “ all the estate, right, title, interest, possession, claim, and demand,-whatsoever,” belonging to Porter. He thus conveyed to Arnet the right to the legal title as fully as he possessed it himself. There was and could be no outstanding title adverse to the one conveyed to Arnet, and when the naked legal title remaining in the government, was conveyed to Porter, who had thus parted with his right to receive it, it at once inured to the benefit of Mrs. Farrell, who then owned the equitable estate.

In Lessee of French v. Spencer, 21 How. 228, it was held by the Supreme Court of the United States, that “ a patent issued to the original beneficiary, who had previously sold his right, inured to the benefit of the purchaser, and related back to the date of the entry; and the heir of the grantor, in such a deed, is estopped from setting up a legal title under the patent.” The contest, in that case, was between the heirs of the patentee, and the purchaser from him of the incipient title. And it was held to be the settled doctrine of the court, that a patent, issuing on an entry in a United States land office, no matter how long after the entry is made, shall relate to the entry, and take date from it. The doctrine of relation was declared to be, that an intermediate bona fide alienee of the incipient interest may claim that the patent inures to his benefit by an ex ¡post facto operation, and receive the same protection at law that a court of equity could afford him. See also Ross v. Barland, 1 Peters, 655 ; Landes v. Brant, 10 How. 372; Wirth v. Branson, 98 U. S. 118.

It is thus made very clear that no one standing in the shoes of the patentee, can successfully resist the right of his alienee to possession, although the latter’s interest was acquired before the issuing of the patent. It is equally clear that one in possession, who founds his right to remain, not on any title of his own, but on the mere denial that a former owner has parted with his right or title, is concluded by the same estoppel that concludes the former owner. The law attaches the same disability to all who maintain that such title is still outstanding, and attempt to found rights upon it. And such estoppel may be used,, not merely defensively, but to sustain actions for the recovery of possession. Lessee of Kinsman v. Loomis, 11 Ohio, 478. It follows, therefore, that the plaintiff was entitled to recover on the proof made, unless the defendant established a paramount right or title in himself. This he sought to do, by proof of title acquired under a sale of the land for taxes, and by adverse possession for the period of twenty-one years. As respects the title alleged to have been acquired under the sale for delinquent taxes, there are two objections, either of which is fatal to its validity. The statute then in force (1 Curwen, 630), and under which the proceedings were had, required the county auditor to publish the delinquent list, with notice of sale, at least four w'eeks, between the first day of October and the first day of December. The only proof given at the trial tending to show compliance with this requirement, was the record of the certificate of the auditor that the list was published for four consecutive weeks prior to December first. This evidence was not admissible. From aught appearing, the publication may have been in September. The law required it to be between October first and December first. In Lessee of Kellogg v. McLaughlin, 8 Ohio, 114, the record of the certificate of the auditor, that the list was published for four consecutive weeks, between the first Monday in October and the first Monday of December, was held inadmissible, as the last publication may have been made after December first.

Again, the statute, § 31, required the auditor, on or before the day of sale mentioned in the notice thereof, to insert at the foot of the record, on said delinquent list, a copy of such notice, and to certify on said record, immediately following such notice, the name of the paper, and the length of' time such list and notice were published therein.

In Lessee of Winder v. Starling, 7 Ohio, 544, it was said not to be essential to the validity of the sale, that this certificate should appear at the foot of the record. But that it must somewhere appear on the record, is a plain and indispensable requirement. There was no evidence offered at the trial showing a certificate on the record that theoiotice of sucb sale had. been published at all. The certificate declared that the foregoing list was published for four consecutive weeks. The object of the statute, in requiring this certificate to be made on the record, was to secure, in permanent form, evidence of the name of the paper, and the length of time such list and notice were published, in order that it could be readily ascertained whether or not the sale made was in conformity to law.

The record failing to disclose the existence of this certificate, and consequently the proof in the mode required by law of the time the list and notice of sale were published, the sale was invalid, and the alleged title acquired thereunder void.

¥e are next brought to consider the validity of the title acquired under the sale of the eighty-acre tract, as lands forfeited to the State. That the auditor’s deed is prima facie evidence of title, and may be given without any proof of the regularity of the proceedings resulting in the sale of the land, was held in Turner v. Yeoman, 14 Ohio, 208, and in Woodward v. Sloan, 27 Ohio St. 592.

The only effect of this rule is to shift the burden of proof, by imposing on the party asserting the invalidity of the deed, the duty of showing it to be void for want of compliance with the statute in the proceedings leading to the alleged forfeiture. This we think he has shown. Unless the lands were legally forfeited to the State, their sale, as forfeited lands, was illegal. That they were not so forfeited, and hence not subject to sale, is very manifest. The record fails to show, that, at the sale of delinquent lands on the second Monday of January, 1847, the lands in controversy, or any other lands, were offered for sale and not sold for want of bidders. Section forty-seven of the act under which these proceedings were had, provided, that every tract of land and town lot offered for sale by the treasurer, as hereinbefore provided, and not sold for want of bidders, shall be, and the same is hereby declared forfeited to the State.” Section thirty-four required the county auditor or his deputy to attend all sales of delinquent lands made by the treasurer of his county, and to-mate a record thereof in a “ substantial book,” therein describing the several tracts of land and town lots offered for sale, stating how much of each tract or lot was sold, and to whom sold; and if any tract or lot should remain unsold for want of bidders, to enter such fact - on the record. Such record is the only proof of the fact required to be recorded. Parol evidence is not admissible to establish it. Lessee of Kellogg v. McLaughlin, 8 Ohio, 116; Lessee of Ward v. Barrows, 2 Ohio St. 246. Here, then was wanting an indispensable condition to the forfeiture, and hence, any sale made of the land under the supposition or belief that a legal forfeiture had taken place, was without authority of law, and the sale consequently void.

The remaining question involves the constitutionality of that clause of the act of May 7, 1869 (66 Ohio L. 338), which makes certain facts enumerated in said act conclusive proof of possession in the purchaser at the tax sale, and those claiming under him. And we are of the opinion that in so far as it undertakes to establish possession in the purchaser at such sale, or those claiming under him, before its enactment, it is in conflict with the constitution. It not only violates section 19 of the bill of rights, which declares that private property shall ever be held inviolate, but also-that clause of section 28, article 2, which withholds from the legislature power to pass retroactive laws. It will be observed that at the time the act was passed, more than twenty-one years had elapsed since the date of either the delinquent or forfeited sale, and the transfer of the land on the duplicate to the name of the defendant. Hence, the-statute, the moment it took effect, cut off all right of action by a purchaser having knowledge of the facts. Its plain effect, therefore, if carried into operation according to its terms, is to deprive the owner of the privilege of selling the land to any one cognizant of such tax sale, and of the rights that are claimed thereunder, notwithstanding the sale as to such owner was absolutely void. It is true, that the act does not purport to affect the right of the owner to the full enjoyment of the property. He may enjoy its use as fully as if such sale had never been made; but the moment he parts with it, to one who examines the title, and who by such examination becomes acquainted with the facts which the statute makes the legal equivalent of adverse possession in the purchaser at the tax sale, the title at once inures to the benefit of the one holding under such sale, in case the necessary time has elapsed for such adverse possession to ripen into title. And this is made to result notwithstanding neither any, nor all of the facts combined, which are thus made conclusive proof of possession as against a purchaser of the land, have the least tendency to establish possession as against the original owner. That the act, with such effect and operation, impairs the value of the property to a very material extent is perfectly obvious. It substantially destroys the jus disponendi. Very few persons will venture to invest their money in real estate without becoming acquainted with the condition of the title, and finding a tax deed on record, the inquiry to which that circumstance naturally gives rise, can not fail to discover the facts to which the statute gives a conclusive effect in favor of the person claiming under such deed, as against one buying with knowledge of such facts. It follows that, in most cases, brought within the operation of the statute, there would be an almost total restriction on the right of alienation. If the owner conveys with covenant to warrant and defend the title, and the tax title claimant recovers the property from the grantee, the grantor becomes at once liable on his covenants; and the result is, he is required to refund the purchase-money to the grantee — the land in the meantime having irrecoverably gone to one, who, as against the grantor, had not the slightest color of title. A statute which, in its operation, works such results, and upon rights of property vested and fixed at the date of its passage, is not only retroactive within the constitutional meaning of that term, but is a direct infringement upon the inviolability of private property. In effect, it seizes the property of one person, and transfers it to another, without even the semblance of consideration.

But it was said in argument, that the law is curative in its nature, and, therefore, aúthorized hy the latter clause of section 28, article '2 of the constitution. The act, however, does not purport, nor was it designed, to be a curative one. Neither in terms nor by implication does it undertake to supply defects or cure irregularities in the proceedings preliminary to the tax sale. If it did, its invalidity would be quite as apparent. The legislature has no power to divest the title of the owner of property, and transfer it to another, by declaring a void tax sale to be valid. It may authorize the court to carry into effect upon such terms as maybe just and equitable, the manifest intention of parties and officers, by curing omissions, defects, and errors in instruments and proceedings arising out of their want of conformity with the laws of this state. Art. 2, § 28. This it did not undertake to do. The act was not passed either in the exercise, or the attempted exercise, of this power. It does not undertake to confer on the courts any power whatever to correct irregularities. That the effect of mere-irregularities in the proceedings preliminary to a tax sale, which might have been dispensed with by the legislature, may be obviated by appropriate subsequent legislation, is-not intended to be doubted. But it was not within the scope or object of the statute to secure any such result; there is nothing in its language or subject-matter indicating such an intention upon the part of the legislature. Nor was it either in its nature or object a statute regulating conveyances. The owner is left perfectly free to convey, and the title, upon conveyance, goes to the grantee as against the grantor as fully and completely as if the statute did not exist. Its object, as stated in its title, is to improve the law of evidence concerning the titles of real estate. Its object, in fact, was to create a title by possession in those claiming under a tax sale as against a certain class of purchasers; and this is sought to be accomplished by making the existence of certain facts conclusive proof of adverse possession. Considered as an act prescribing a rule of evidence, its validity depends upon its effect upon rights existing when put into operation.

A statute changing the rules of evidence is usually classed with those affecting the remedy, and unless it impairs the obligation of a contract, or destroys vested rights, Is not repugnant to the constitution. But where vested rights are divested or destroyed, although the statute professes or purports to affect remedies only, it is unconstitutional. Von Hoffman v. City of Quincy, 4 Wall. 535 ; Green v. Barry, 15 Wall. 622; Rich v. Flanders, 39 N. H. 304. In Cooley’s Const. Lim. *367, the author, commenting on the power of the legislature to alter or change 'the rules of evidence, and to make them, in their altered form, applicable to existing causes of action, whether in suit or not, .says:

“ But there are fixed bounds to the power of the legislature over this subject which can not he exceeded. As to what shall be evidence, and which party shall assume the burden of proof in civil cases, its authority is practically unrestricted, so long as its regulations are impartial ,aud uniform ; but it has no power to establish rules which, under pretense of regulating the presentation of evidence, go so far as altogether to preclude a party from exhibiting his right. Except in those eases, which fall within the familiar doctrine of estoppel at the common law, or other cases resting upon the like reasons, it would not, we apprehend, be in the power of the legislature to declare that a particular item of evidence should preclude a party from establishing his rights in opposition to it. . . A statute, therefore, which should make a tax deed conclusive evidence of a complete title, aud preclude the owner of the original title from showing its invalidity, would be void, because being not a law regulating evidence, but an unconstitutional confiscation of property.”

In the following cases it was held not competent for the legislature to make a tax deed conclusive evidence of the legality of all prior proceedings, so far as respects the essential pre-requisites for the exercise of the taxing power: McCready v. Sexton, 29 Iowa, 357; Abbott v. Lindenbower, 42 Mo. 162; White v. Flynn, 32 Ind. 46. See also Cooley on Taxation, 223; Blackwell on Tax Titles, *80.

In East Kingston v. Towne, 48 N. H. 57, it was said to be a maxim of general jurisprudence, not confined to any code, but recognized as fundamental in the law of every enlightened people,that no man’s private rights shall be concluded by any judgment, decree, or other adjudication, to which he was not so far a party that he had an opportunity to be heard, and to adduce evidence upon all points that affected his interest.”

In so far as the act under consideration operates to set the statute of limitations in motion in respect to tax sales occurring before its passage, and makes the knowledge of the existence of the facts therein enumerated conclusive proof of possession in fact, we hold it to be in conflict with the constitution. As a rule of evidence operating to conclude the party from showing rights existing when it went into operation, it can not, as wo have seen, have any effect. It can not operate as a statute of limitations, as respects sales occurring before its passagé, because not sufficiently definite and uniform. It fixes no time after its passage within which the action may be brought. One who purchased the land five years before the expiration of twenty-one years from the date of the tax sale, would have five years, under the operation of the statute, within which to commence his action, while one who purchased one day before, would be required to bring his action within twenty-four hours. A statute of limitations, to be operative, must afford the party on whose rights of action it operates, a reasonable time within which to commence his action, and such time must be definite and uniform.

Judgment reversed, and cause remanded for a new trial.

Okey, J.

I concur in the first proposition of the syllabus as to the rights of the parties under the quitclaim deed, for the reason given in the opinion of Boynton, J., and for the further reason that the original certificates of entry are referred to in the quitclaim deed, so that the instrument may have effect by force of the recital.

But I dissent from so much of the opinion as holds that the delinquent sale is invalid. The statute required that the delinquent list should be published for four consecutive weeks between the first day of October and the first day of December. The notice itself is dated October 1st, which is evidence that it was not completed until that time, and the record shows that it was published for four consecutive weeks prior to December 1st. The argument is that the first publication may have been made on October 1st, and that there can be no presumption that tbe officer performed his duty by publishing it four weeks after October 1st, although there is nothing in the statute requiring the facts as to the publication to appear in the record. This is to require what is known in pleading as certainty to a certain intent in particular, according to which rule not only a statement of facts in the most precise form must be shown, but it must also appear that those facts are not to be controverted. Nothing of the sort is required at this day with respect to tax sales. In determining as to the validity of a sale of lands for taxes, the better opinion now is that where the record discloses a substantial compliance with the statute, this is all that is required, as to the mere form of the proceeding, and that to ascertain whether there was such compliance, the whole record should be examined.

Formerly, a tax purchaser was regarded as little better than a public robber. Hughey v. Horrel, 2 Ohio, 231. Strong, J., in a recent case in the Supreme Court of the United States (De Treville v. Smalls, 8 Law Reporter, 225), in disapproving that class of decisions, says: “Ve are not unmindful of the numerous decisions of state courts which have construed away the plain meaning of statutes providing for the collection of taxes, disregarding the spirit and often the letter of the enactments, until of late years the astuteness of judicial refinement had rendered almost, inoperative all legislative provisions for the sale of lands, for taxes. The consequence was that bidders at tax sales,, if obtained at all, were mere speculators. The chances were greatly against their obtaining a title. The least error in the conduct of the sale, or in the proceedings preliminary thereto, was held to vitiate it, though the tax was clearly due and unpaid.” He further shows that in the later decisions, especially in Ohio, a more reasonable rule has been adopted.

Kellogg v. McLaughlin, 8 Ohio, 114, is relied on as sustaining the strict construction applied in the case before us. The change from the technical to the reasonable rule on this subject is very apparent, when we examine in our reports the early and later views of the eminent judge who delivered the opinion in that case. Still, I would feel bound by that decision, as it has become in a sense a rule of property, if the facts were entirely analogous to those in the case before us. But I think this case is distinguishable from it. There the record showed the publication for the proper length of time between the first of October and the first Monday of December; but the law required the publication to precede the first day of December, and the first Monday of December was not the first day of the month. Hence, the record disclosed the fact that. the officers conducting that sale were ignorant of the requirements of the law, and the court felt warranted in applying to that record a very strict construction. But nothing of the sort appears in this record, and a reasonable-construction of what does appear shows that the law was. complied with.

The other objection to the validity of the delinquent sale-will be found, on careful examination, to be equally technical and fallacious, and I will not take space to go into an examination of it.

Nor in my opinion is the objection to the forfeited sale-available to Magruder, if indeed the objection was at any“time of any force. The action is brought by Magruder against Esmay to recover possession of two hundred and forty acres of land, and a necessary averment in the petition is that Esmay keeps him out of possession. Eighty .acres of the land had been sold and conveyed at a sale of forfeited lands more than twenty-one years before this suit was brought, and Esmay holds under that title. Magruder and those under whom he claims never had possession for a moment, nor did they in fact pay any taxes. The lands were wild and uncultivated, but Esmay and those under whom be claims regularly paid the taxes, openly made claim of exclusive and absolute ownership of the eighty acres of land under the deed made at the forfeited sale,, and that deed being regular on its face, afforded prima facie ■evidence of the regularity of the sale, and it had been properly recorded. Under the circumstances, the statute ■of limitations of twenty-one years was, in my opinion, a complete bar to the action as to the eighty acres. "With this view it is unnecessary that I should express any opinion upon the question whether there was any substantial 'defect in the forfeited sale.

Finally, I see no constitutional objection to the act of 1869 (66 Ohio L. 338; Revised Statutes, § 4114). The act •is as follows:

“ An act to improve the law of evidence concerning the titles of real estate.
“ Section 1. Be it enacted, etc., That in all cases where unoccupied or unimproved real estate has been or shall be ■sold at any tax sale in this state, and the purchaser thereof has received, or shall receive a deed therefor, and said real estate has been or shall, from and after said sale, be placed upon the tax duplicate of the proper county, in the name of said purchaser or those claiming title under him, and be .so continued on said duplicate, and said purchaser or those claiming under him, shall, from and after said sale, openly and notoriously claim the title and ownership of said real •estate and pay the taxes thereon from and after said sale, the same shall, as against any title acquired by deed exe■cuted after such tax sale, be held and deemed in all cases in all courts as prima facie proof of the possession of said real estate by said purchaser or those holding under said purchaser, from and after the date of said sale, until the said sale has been or shall be set aside in a civil action or suit, in a court of competent jurisdiction, or has been redeemed according to the laws of this state; and as to all persons acquiring title by deed executed after such tax sale, having knowledge of said sale and the payment of taxes and claim of title and ownership as aforesaid, said facts aforesaid shall be taken as conclusive proof of such possession, and be so held by all courts in all cases.
“ Sec. 2. This act shall be in force from and after its passage, and its provisions shall apply to all tax sales heretofore or hereafter made in this state.”

The act has no application to conveyances made before its passage. Even in England, where the power of parliament is unrestricted, the act would be so construed. Maxwell on Stats. 190. But to apply the act to tax sales already made is not to render it retroactive; nor does it in any unwarranted manner interfere with the rights of property. In my judgment the act is clearly valid, and on the facts it afforded a complete defense to Esmay. It simply prescribes a rule of evidence to apply, not to the original owner or his heir, but only to those who purchase from such owner subsequent to the passage of the act, such owner being out of possession, and the tax title outstanding; and where such purchaser takes the conveyance, with notice, under the circumstances disclosed in this record, it inures, in effect, to the benefit of the person holding the tax title. In that view, the act is simply a restraint on alienation not different in pidnciple from a statute which, in terms, provides that if one out of possession make a conveyance, it shall inure to the benefit of the party in possession; and the authorities relied on are not in opposition to the validity of such a statute. To be sure, it is said that no such purpose as I have stated appears on the face of the statute; but White, J., in The State v. Atty. Gen., 21 Ohio St. 1, 11, very properly said “ The constitutionality of an act is to be determined by its operation, and not by the mere form it may be made to-assume.”

Gilmore, C. J., concurs in the dissenting opinion.  