
    POSSESSION UNDER. A TAX DEED.
    [Circuit Court of Hamilton County.]
    The Marmet-Halm Coal & Coke Company v. The Cincinnati, Lawrenceburg & Aurora Electric Street Railroad Company.
    Decided, March 10, 1906.
    
      Taos Titles — Uncertain Description in — Section 4114 Unconstitutional— Adverse Possession — Conclusive Proof of — The Law of Evidence.
    
    1. Where the description in a tax deed is so indefinite as to make it impossible to locate the land, the holder of the deed can not bring to his aid a plat in the auditor’s office to which no reference is made in the deed, and such a deed is void for want of certainty.
    2. The evidence in this case establishes that the plaintiffs at the time they acquired title had knowledge of the previous tax sale and payment of the tax, which under Section 4114 is conclusive proof of adverse possession on the part of the defendants.
    3. But the provision of Section 4114, as to what shall constitute conclusive proof of possession, is an unconstitutional confiscation of property, and without the aid of this section the defendants’ claim of title by adverse possession fails.
    Gifeen, J.; Jelke, P. J., and Swing, J., concur.
   The plaintiff seeks to quiet title to three and sixty-four hundredths acres of land in Miami township, Hamilton county, Ohio, being the south part of lot No. 13 as designated on the plat of subdivision made in partition proceedings among the heirs of Anna H. Taylor, deceased, the entire lot containing nine and fourteen hundredths acres. The plaintiff shows title by deed and possession of the land.

The defendant offers in evidence a tax deed dated July 27, 1882, executed in pursuance of a forfeited land sale had in 1877, from which time it claims to have been in adverse posssession. The objection to the deed is that the description was so uncertain and indefinite that the land could not be found. It is as follows:

“Situate in said county of Hamilton, and described as follows, to-wit: Part lot 13, 3 64-100 acres. Taylor’s heirs. Value, $600. North Bend, Miami township.”

The description on the tax duplicate is as follows: “Fred C. Schwartz, Tax — Miami township. Part lot 13, Taylor’s heirs, 3.64 acres. Value, $710.”

It is impossible to tell, from either of these descriptions, where in Miami township Lot 13, Taylor’s heirs, is situated, or in what part of lot 13 the 3.64 acres may be found, but it is claimed that the description is aided by a plat in the auditor’s office of lot 13, marked Taylor’s heirs, showing 3.64 acres in.the southern part of the lot. Counsel rely upon the case of Stewart v. Alen, 5th O. S., 257, where it is said:

‘ ‘ In many, perhaps in all cases, the auditor of a county could make brief references upon the duplicate plats and other records in his office, so that the same might form a part of the description in the duplicate, and thus avoid a common objection to tax titles.’’

In this ease there is no reference upon the duplicate nor in the deed to the plat offered in eyidence; it is true that the number of the lot and amount of land, and the words “Taylor’s heirs” are the same in each, but it does not appear from the plat in what part of the county the lot is located. Under a uniform line of decisions in this state, the deed must be held void for uncertainty.

As to the claim of adverse possession, the defendant does not rely upon actual possession, but such as arises by force of Section 4114,of the Revised Statutes, which provides:

“The knowledge, by a person acquiring title by deed executed after such tax sale, of the payment of tax, and the claim of title and ownership, shall, as to such person, be taken as conclusive proof of possession.”

We think the evidence shows that the plaintiff had knowledge of the facts therein enumerated when it acquired title by deed, which as to it would be conclusive proof of possession under this section of the statutes. We are of opinion, however, that this section must be declared unconstitutional, under the case of Magruder v. Esmay, 35th O. S., 221, the fourth proposition of the syllabus being as follows:

Maxwell & Ramsey, for plaintiff.

Shepherd d¿ Shaffer and Peck, Shaffer & Peck, contra.

“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.”

Under the facts in the case, the court was not required to declare the act unconstitutional, except as to its operation prior to its passage, but on page 239 Boynton, J., says:

“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.”

And at page 238 he quotes with approval from Cooley’s Constitutional Limitations, as follows:

‘ ‘ Except in those cases, which fall within the familiar doctrine of estoppel at the common law, or other eases 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, and 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. ’ ’

We are therefore constrained to hold that in so far as this section makes the knowledge of the existence of the facts therein enumerated conclusive proof of possession in fact is in conflict with the Constitution. The tax deed of the defendants being void, and having failed to show adverse possession, the plaintiff is entitled to a decree quieting its title to the premises in controversy.  