Page:North Dakota Reports (vol. 3).pdf/404

 deed was recorded. But we are clear that the statute cannot be invoked as a bar to an action to recover possession in a case where the defendant’s only claim of title is a tax deed void on its face. The deed being void on its face, there was nothing for the statute to operate upon,—nothing to set it in motion. This view has the support of the weight of authority, and is, in our judgment, the safer doctrine. Moore v. Brown, 11 How. 414; Waterson v. Devoe, 18 Kan. 223; Hall v. Dodge, Id. 277. In Iowa, when the assessment is void, the statute will not run. Nichols v. McGlathery, 43 Iowa, 189; Burke v. Cutler, (Iowa,) 43 N. W. Rep. 204; Towle v. Holt, (Neb.) 15 N. W. Rep. 203; Sheehy v. Hinds, 27 Minn. 259, 6 N. W. Rep. 781; Hurd v. Brisner, (Wash.) 28 Pac. Rep. 371; Bird v. Benlisa, 142 U. S. 664, 12 Sup. Ct. Rep. 323.

It follows from what has been said that the judgment of the District Court is erroneous as the sum of-$500 improperly inserted therein as plaintiffs’ attorney fee. That sum must be stricken from the judgment, and this court will direct that the judgment be modified accordingly; defendant to recover costs in this court. All concur,

(56 N. W. Rep. 150.)