The opinion
Mr. Justice Boggs, dissenting:
Lot 15 was the homestead of James H. Ely. That lot and the 14-foot strip were fenced together without a cross-fence between them. Ely conveyed lot 15 to his wife, Carrie C. Ely. He remained in possession of said-lot 15, living thereon with his grantee, his wife, as before the conveyance. He was the owner of an estate of homestead in the lot and was in possession. He was entitled to so remain in the possession thereof even if his wife, the grantee in the deed, had been disposed to oust him therefrom. There was, therefore, no real change in the actual character of his occupancy of the 14-foot strip. It is not essential, in any case, to actual occupancy of land, it shall be surrounded by a fence, or be fenced at all, for that matter. He and his wife afterwards conveyed a tract of land including the strip to Maher, who immediately re-conveyed the 14-foot strip to Mrs. Ely. She could, therefore, tack her possession to his possession. Occupancy of the strip was continued by her for such period of time as that, with the time of his possession, the full period of twenty years was completed.
I dissent also from the conclusion the tax deeds held by the complainant should be set aside by the decree without requiring the re-payment of taxes. The specific object to be obtained by section 62 of chapter 120 of the Revised Statutes, entitled “Revenue,” is to secure correct descriptions of parcels of lands which cannot be described otherwise than by metes and bounds, in order such property may be legally assessed for taxation. Section 1 of chapter 109, entitled “Plats,” was enacted for an entirely different purpose, namely, to provide for and regulate the subdivision of lands into streets, alleys, blocks and lots, for the purpose of laying out a town or making an addition to a city, town or village. The provision of this chapter entitled “Plats,” relative to the description of streets, alleys, common and public grounds, etc., and the mode of certification and acknowledgment of the plat by the proprietor of the town or of the addition to a town, city or village, have no application to the platting and surveying of tracts or parcels of land under section 62 of the Revenue act. The certificate referred to in the Revenue act is that of the surveyor, only. The platting" required by that act may be by order of the county clerk, without the concurrence — even against the will — of the owner of the land platted. (Revenue act, sec. 63.) The owner need not make any certificate, even if he causes the land to1 be surveyed, as section 62 declares it to be his duty to do. Whether platted under section 62 or section 63 of the Revenue act, the certificate required is that of the surveyor. * The description of the tract as lot 25 in the “county clerk’s plat or subdivision” was not, in my opinion, void because it did not conform to the requirement of the act relating to the platting of a town or an addition to a city, town or village. Taxes paid thereon by that description should therefore have been' ordered re-paid to the complainant.
Cartwright, C. J., and Carter, J.: We concur in the foregoing dissenting opinion by Mr. Justice Boggs.