
    [No. 3590.]
    Evans v. Howell.
    
      Limitations — Color of Title — Payment of Taxes. The seven years statute (Rev. Stat., see. 4090) is'not available as a defense to an action to recover vacant land unless seven full years elapse between the first payment of taxes under color of title and the institution of the action.
    
      Appeal from. Kit Carson District Court. Hon. J. W. Sheaeor, Judge.
    Mr. Louis Vogt, Mr. P. R. G-odsman, for appellant.
    Mr. John P. Mail, for appellee.
   Hurlbut, J.,

delivered the opinion of the court.

This action was commenced January 1st, 1907, by plaintiff (appellee) against defendant (appellant) to recover possession of land which had been sold for taxes. The answer pleaded seven separate defenses, the first of which was a denial of plaintiff’s title and a plea of ownership in defendant. The appellant has abandoned all defenses except that respecting the seven years statute of limitations relative to the payment of taxes on vacant and unoccupied land for seven successive years under color of title (sec. 4090, Revised Statutes 1908). The case was tried to the court without a jury and the findings and decree were in favor of plaintiff.

The only question discussed in the briefs is that relating to the defense just mentioned. This identical question was before this court and full argument had thereon in the case of Empire R. & C. Co. v. Howell, 126 Pac., 1096, and determined adversely to appellant’s position. In that opinion the point was fully discussed and authorities reviewed, and the court held that the statute pleaded-was not available to defendant as a defense unless it appeared that seven full years had elapsed between the first payment of tases under color of title and the date suit was begun to recover the land. Under authority of that case the judgment upon which this appeal is founded will0 be affirmed.

Judgment Affirmed.  