3. : The Keokuk & Des Moines Railway Co. v. Lindley. DEFECT IN TITLE: POSSESSION. Even though there be defects in the title of the patent holder, he is nevertheless entitled to possession as against one claiming under a void tax title, when his possession is founded upon claim and color of title. Appeal from Jasper District Court. FRIDAY, MARCH 22. ACTION in chancery to set aside a tax deed, and to quiet title to real property, the possession of which plaintiff held under a claim of title. By a cross-petition, defendants set up title under a tax sale and deed to the property, and prayed that their title be quieted. The relief sought by plaintiff was granted, and defendants' cross-petition was dismissed. fendants appeal. R. A. Sankey, for appellants. Smith & Wilson, for appellee. De BECK, J.-I. The facts of the case, so far as they are necessary to be considered in determining the rights of the parties, are established by the testimony before us to be as follows: The Des Moines Valley Railroad Company, in 1865, purchased the property in question, two lots in the town of Monroe, and, under the title thus acquired, then entered into possession. The plaintiff claims all the property of the Des Moines Valley Railway Company, under a sale and deed executed, upon the foreclosure of a mortgage, to its grantors. They acquired this title, and took possession of the property, in 1874. After plaintiff acquired the property, defendants Lounsberry and Johnston entered upon the lots, under an agreement with plaintiff's superintendent, and built a barn thereon. The terms of agreement were, in effect, that they should pay no rent, and should not hold plaintiff liable for any loss or destruction of the buildings by fire, caused by the engines running upon the road. They were to surrender the The Keokuk & Des Moines Railway Co. v. Lindley. possession upon notice from plaintiff. The date of this agreement is not shown further than that it was in 1874. It does not clearly appear whether defendants held possession of all of the lots under this arrangement, though we think the testimony supports such a conclusion. The lots were sold for taxes in October, 1866, and a treasurer's deed executed upon the sale, December 20, 1869, to defendant Lindley. On the 28th day of January, 1875, while Lounsberry and Johnston were in possession of the lots, as set out above, Lindley conveyed the property to these defendants, who now claim to hold it under the title then acquired. The relation, or tenancy, existing between defendants and plaintiff, was not terminated by notice, or otherwise, when defendants purchased the property of Lindley. II. We conclude that the decree of the court below is well supported by the facts of the case, for the following rea sons: The defendants held the land under the plaintiff at the time they acquired the tax title. They insist, however, that Possess they did not hold the land under a lease, but un 1. TAX TITLE: acquire. censee cannot der a license, and, therefore, the relation of landlord and tenant did not exist between the parties. Let this be admitted. Their possession as licensees was the possession of the plaintiff. Such would be the case did a lease exist. It must be true in the case of a license, which is but a permission to use or occupy land for a specified purpose. Taylor's Landlord and Tenant, §§ 31, 86; Washburn on Real Property, p. 398. The possession of land held by a tenant or licensee, in contemplation of law, is in the landlord or licensor. The plaintiff, whether defendants were lessees or licensees, must be regarded as not having parted with the possession of the lots. Plaintiff had been more than five years in possession after the tax deed was executed, when defendants purchased the tax title. The right to recover thereon is barred in that time, and plaintiffs can set up the bar of 2.-: statute of limitations. The Keokuk & Des Moines Railway Co. v. Lindley. the statute in this action. Hintrager v. Hennessy, 46 Iowa, 600; Wallace v. Sexton & Son, 44 Id. 257; Patton v. Luther, 47 Id. 236. As has been remarked, defendants' relation as licensees, or lessees, had not been terminated when they acquired the tax title. Could that title, in their hands, defeat plaintiff's right to the lots? We conclude that it could not, for they could acquire no higher right than their grantor, and, as we have seen, his right to recover the property was barred by the statute of limitations. The possession which they held after they acquired the tax title can give them no right to recover, for the rights of the parties must be determined as they were at the time they acquired the title. Surely it cannot be claimed that their tax title received force and vitality from their subsequent act in terminating their relation as licensees. 3. : defect in title: possession. As III. It is claimed that plaintiff has failed to show, by the testimony, that it holds the legal title to the lots, there being defects in its chain of title. Let this also be admitted. against defendants, its right is based upon its possession, which was under claim and color of title. This right was not, as we have shown, defeated by defendants' tax title. Plaintiff is in equity entitled to recover the possession of the land, and hold it as against defendants, who are setting up the tax title to protect their possession. Equity will restore plaintiff to its rights in the property, which can only be done by restoring the possession, and will declare the tax title void as against plaintiff. The relief granted by the decree of the District Court is authorized by the law. This view of the case renders the consideration of other questions raised by counsel unnecessary. AFFIRMED. Caldwell v. Bridal. CALDWELL V. BRIDAL. 1. Sale: CONTRACT FOR DISEASED STOCK: WHEN VOID UNDER STATUTE. Under Section 4055 of the Code, a contract for the sale of sheep, known by the seller to be affected with a contagious disease, cannot be enforced, even when the purchaser has knowledge of the diseased condition of the sheep at the time of the purchase; the object of the statute being to prevent traffic in diseased animals, for the protection not only of the purchaser, but of the public. 2. 3. : ———: KNOWLEDGE OF NATURE OF DISEASE. If, however, the seller is not aware that the disease with which the sheep are affected is contagious, the statute will not apply, being limited by its terms to the sale of sheep known to be affected with a contagious disease. : - : FRAUDULENT CONCEALMENT. The fact that the seller kept the diseased portion of the flock separate from the remainder, and did not show them to the buyer, would not vitiate the sale if the latter obtained knowledge of the diseased condition of the sheep before completing the purchase. Appeal from Appanoose District Court. FRIDAY, MARCH 22. THE plaintiff claims $607.25, alleged to be due on a promissory note. The defendant, for answer, alleges that the note was executed for the purchase price of two hundred and seventy-six sheep; that after the defendant had concluded to buy plaintiff's flock of sheep the plaintiff, with intent to defraud defendant, turned into the flock about sixty diseased and scabby sheep, which before had been separated from the flock, and that at the time of the sale of said sheep they were infected and had a contagious disease, commonly known as the scab, and were, therefore, sold contrary to law. The jury returned a general verdict for the plaintiff for the amount of the note and interest, and also returned the following special verdict: 1. Was the note in this case given for sheep sold by the plaintiff to defendant? Yes. 48 15 81 343 48 15 113 609 Caldwell v. Bridal. 2. At the time of the sale of said sheep, did the sheep have a contagious disease? Yes. 3. Did the plaintiff know that they were so diseased at the time of the sale to defendant? Yes. 4. How many of the sheep were diseased, if any, at the time of the sale? Thirty head. 5. Did defendant know, when he bought the sheep, that they were diseased with the scab, or any of them? Yes. 6. Did the plaintiff know, at the time he sold the sheep to defendant, that the disease called scab was a contagious disease? No. The motion to set aside the verdict and grant a new trial was overruled, and judgment was entered upon the verdict. The defendant appeals. Vermillion, Haynes & Vermillion and Geo. D. Porter, for appellant. J. C. Coad and Tannehill & Fee, for appellee. tract for dis. eased stock: when void under statute. "If DAY, J.-I. Section 4055 of the Code is as follows: the owner of sheep, or any person having the same in charge, 1. SALE: con- knowingly import or drive into this State sheep having any contagious disease; or turn out or suffer any sheep having any contagious disease, knowing the same to be so diseased, to run at large upon any common, highway or uninclosed lands; or sell or dispose of any sheep, knowing the same to be so diseased, he shall be deemed guilty of a misdemeanor, and shall be punished by fine in any sum not less than fifty dollars, nor more than one hundred dollars." The defendant asked the court to instruct the jury as follows: "If the jury find that the note (was) given in consideration for sheep, as claimed by the defendant, and that the sheep were affected with a disease known as scab, and that said disease is contagious, and you find further that the plaintiff knew said sheep were so diseased, then the selling of said |