delivered the opinion of the court:
This is a code action for the possession of real property. Defendant has a tax deed, void on its face, which he claims vests the legal title in him, under the following statute:
“Whenever a person having color of title, made in good faith, to vacant and unoccupied land, shall pay all taxes legally assessed thereon for seven successive years, he or she shall be deemed and adjudged to be the legal owner of said vacant and unoccupied land to the extent and according to the purport of his or her paper title.” — Sec. 4090, Rev. Stats., 1908.
The tax deed was recorded April 19, 1900; first payment of taxes thereunder, was December 18, 1901; this action was commenced May 16, 1908.
This statute was no defense unless seven years had 'elapsed between the date of the first payment of taxes, and the date of bringing the action. Empire Co. v. Howell, 22 Colo. App. 585; and a tax deed is not color of title until recorded.— Sayre v. Sage, 47 Colo. 559.
In a case of this character, where conflicting titles are involved, , before the seven years’ statute can operate as a limi tation, there must not only be seven years between the date the suit is brought and the first payment of taxes; but there also must be that length of time between the date of record of a tax deed, and the commencement of the action. In this case, while more than seven years elapsed between the date the deed was recorded and the commencement of the action, less than seven years had expired between the first payment of taxes and the bringing of the suit. The judgment is therefore affirmed. Affirmed.
Chief Justice Musser and Mr. Justice Scott concur.