Curran, Adm'r, etc. vs. Witter. contingency, applicable to this case. That section only ap We plies to cases in which there is no person in existence when the cause of action accrues who can bring the action. are further of the opinion that this case is not within the provisions of sec. 4230, R. S., which is a part of chapter 177. That chapter contains the statute of limitations. The section provides that "none of the provisions of this chapter shall apply to any action brought upon any bills, notes, or other evidences of debt issued by any bank, or issued or put into circulation as money." The certificate of deposit in suit was not issued by a bank; neither was it put into circulation as money. The claim having been barred by the statute of limitations long before the action was commenced, instead of directing a verdict for the plaintiff the court should have directed the jury to find for the defendant. The rejection of the testimony of the witness Moody was also error. On the authority of Schettler v. Jones, 20 Wis. 412, his testimony, founded on the entries made by him in the defendant's account-books, should have been received, although he had no independent recollection of the transactions thus entered. In the opinion by Chief Justice DIXON in Schettler v. Jones, the rule in its application is thus stated: "The charges were not mere private memoranda made by the witness for his own convenience, but entries in the books of the plaintiff in the regular course of business. In such cases, we think the sounder and better rule to be that if the witness can swear positively that the memoranda or entries were made according to the truth of the facts, and consequently that the facts did exist, that is sufficient, though they may not remain in his memory at the time he gives his testimony. He may testify from the entries; and when he does so he swears positively to the truth of the facts stated in them." This case was followed, and the same rule applied, in Riggs v. Weise, 24 Wis. 545. Many Lamoreux vs. Huntley, Adm'r, etc. and others. cases in support of the rule are cited in the opinion in Schettler v. Jones, and in the brief of counsel for defendant in the present case. By the Court. The judgment of the circuit court is reversed, and the cause will be remanded for a new trial. See note to this case in 31 N. W. Rep. 710.- REP. LAMOREUX, Appellant, vs. HUNTLEY, Administrator, etc., and others, Respondents. December 21, 1886 — January 11, 1887. (1) Mortgage: Tax deed and quitclaims taken as security. (2) Bona fide purchaser: Quitclaim. (3) Evidence: Declarations as to title. (4) Landlord and tenant: Notice of application for tax deed. (5) Possession of land: Notice to purchaser. 1. A. purchased land, taking title to a part thereof in his son's name. B. obtained a tax title to that part which was in the name of A., and afterward quitclaimed to C., who quitclaimed to D. A.'s son also quitclaimed to D. The evidence is held to warrant a verdict to the effect that D. took and held the title merely as security for advances made to A. or for his benefit. 2. While so holding title to the land D. quitclaimed to E. and afterwards, with the knowledge of E., had a settlement with A. and conveyed the land to F. for the benefit of A. It did not appear that there was any consideration for the quitclaim deed to E., and that deed was not recorded until long after the conveyance to F. A. remained in the actual possession of the land all the time. In an action brought by the successor to E.'s title against the heirs of A. it is held that E. was not a bona fide purchaser, and that he and his grantees were bound by the transactions between D. and A. 3. In such action the declarations of A., made while he was in possession, as to his ownership and the nature of his possession, and the declarations of D., made after he had quitclaimed to E. and after A. had notice of that fact, were admissible in evidence on the part of the defendants. 4. The fact that notice of the application for a tax deed was served upon the person in possession of land is strong evidence that he Lamoreux vs. Huntley, Adm'r, etc. and others. was not in possession as a tenant of the holder of the tax certificate, as in that case no notice would be necessary. 5. Actual possession of land is notice to a purchaser of the rights of the occupant, unless the purchaser derives his title from or through such occupant. APPEAL from the Circuit Court for Portage County. Ejectment. The action was brought by Charles A. Lamoreux against Charles Myers, the son, Eliza Myers, the widow, and Frederick Huntley, the administrator of the estate of J. L. Myers, deceased. The facts are stated in the opinion. The jury found a special verdict substantially as follows: (1) The plaintiff was not, at the time of the commencement of the action, the owner or entitled to the possession of the land in question; (4) J. L. Myers did not, at the time of his dea th, occupy or hold the land in question as tenant of O. H. Lamoreux or his grantors; (6) O. H. Lamoreux took the title to the lands from the McDills and C. C. Myers at the request of J. L. Myers, (7) under an agreement with the latter that he would hold such title as security for money then advanced for, or previously owing to him from, said J. L. Myers; (8, 9) in December, 1869, the said indebtedness from J. L. Myers to O. H. Lamoreux was settled and discharged by Lamoreux deeding the land in controversy to Herren, at the request and for the benefit of Myers, and by retaining to himself as owner, with Myers' consent, the balance of the lands deeded by the McDills and C. C. Myers. From the judgment in favor of the defendants the plaintiff appealed. For the appellant the cause was submitted on the brief of Raymond & Haseltine. They contended, inter alia, that it was error to admit evidence of the declarations of J. L. Myers that Lamoreux's interest in the place was only by virtue of some tax certificates he had, or that he and Lamoreux had settled up the farm business and were square Lamoreux vs. Huntley, Adm'r, etc. and others. now, he taking the north half and giving Lamoreux the south half. While it is allowable to prove the statements of one in possession and explanatory thereof, it is not permissible to show everything that may have been said by him in respect to the title, as to how, when, or from whom the title was acquired. McBride v. Thompson, 8 Ala. 650; Abney v. Kingsland, 10 id. 355; Rowland v. Boozer, id. 694; Scott v. Dansby, 12 id. 719; Thompson v. Mawhinney, 17 id. 362; Allen v. Prater, 30 id. 460. It was also error to admit the acts and declarations of O. H. Lamoreux, done and made after his conveyance to W. O. Lamoreux. It appears that Myers was informed that he had so conveyed prior to the alleged settlement and division of the farm. Such being the case no settlement could bind W. O. Lamoreux and his grantees. It was also error to admit the declarations of O. H. Lamoreux after he had parted with his title to the lands and was not in possession thereof. Padgett v. Lawrence, 10 Paige, 170; Felder v. Bonnett, 2 McMullen's Law, 44; Settle v. Alison, 8 Ga. 201; Gill v. Stroizier, 32 id. 696; Sharp v. Wickliffe, 3 Litt. 10; Barrett v. French, 1 Conn. 354; Pettibone v. Phelps, 13 id. 450; Reichart v. Castator, 5 Binn. 109; Brashear v. Burton, 3 Bibb, 9; Bogert v. Phelps, 14 Wis. 88; Welch v. Sugar Creek, 28 id. 618; Bates v. Alleman, 13 id. 644; Fay v. Rankin, 47 id. 400. For the respondents there was a brief by Cate, Jones & Sanborn, and oral argument by Mr. Jones. To the point that the declarations of J. L. Myers were admissible for the purpose of showing that he claimed the land in his own right and not as the tenant of Lamoreux, they cited Kelly v. Kelly, 20 Wis. 443; Meade v. Black, 22 id. 241; Roebke v. Andrews, 26 id. 311; Gill v. Crosby, 63 Ill. 190; Whitaker v. Wheeler, 44 id. 440; Williamson v. Williams, 11 Lea, 355; Sweltenham v. Leary, 18 Hun, 284; Sutton v. Cassellegi, 5 Mo. App. 111; Dodge v. Freedman's S. & T. Co. 93 U. S. 379; Hunt v. Haven, 56 N. H. 87; Yates v. Yates, 76 N. C.. Lamoreux vs. Huntley, Adm'r, etc. and others. 142; Thomas v. Wheeler, 47 Mo. 363; Keator v. Dimmick, 46 Barb. 158; Abend v. Mueller, 11 Ill. App. 257. TAYLOR, J. This is an action of ejectment to recover the possession of five forty-acre tracts of land, less about eighteen acres off the south side of the tract. On the trial the evidence showed that J. L. Myers, the deceased, had purchased from the government all the lands in question, except two forty-acre tracts, and that these two tracts were purchased from the government in the name of his son, C. C. Myers, but with the money and for the benefit of J. L. Myers, deceased. The record does not disclose that J. L. Myers, so far as the lands in controversy are concerned, ever conveyed the title he procured from the government to any other person. As to the two forty-acre tracts purchased by C. C. Myers, the record discloses that he conveyed said tracts to O. H. Lamoreux on the 27th of January, 1868, and that afterwards, and on the 11th day of December, 1869, O. H. Lamoreux and wife conveyed all the lands in question to one Ashebel Herren, a relative of said J. L. Myers; and the defendants claim that this deed was made to said Herren for the use and benefit of the said deceased; that the dedeceased went into the actual possession of these tracts of land as early as 1854, and continued in the actual possession thereof until his death in 1884. The plaintiff, to establish his title to said lands, introduced a tax deed for all of said lands, except the two forty-acre tracts entered by C. C. Myers, from Portage county to one James Scott, bearing date May 28, 1864; a quitclaim deed from James Scott to Me Dill, dated November 1, 1866; a deed from McDill and wife to O. H. Lamoreux, dated January 27, 1868; a deed from C. C. Myers to said O. H. Lamoreux for the two forty-acre tracts above mentioned, dated January 27, 1868; a quitclaim deed from O. HI. Lamoreux and wife to his son W. O. Lamoreux, dated April 7, 1869, |