¶1The announcement in the opinion of the court that the conjoint effect of the acts of 1879 and of 1911, upon the patent from the state, was that “it became in effect a deed subject to be defeated by proof that the purchase money had not been paid,” Avas not, as appears from the feature of the opinion treating these acts, intended to affirm that these acts operated upon the instrument or title in any direct, immediate sense, or that they (acts), together or alone, changed the *468condition precedent of the act of 1879 to a condition subsequent in respect of the payment of the-purchase money. The sum of this announcement is that the general result wrought by these acts was to impose the perhaps difficult task of refuting the prima facie evidence of compliance with the condition of previous payment fixed in the act of 1879, upon him whose asserted right rests for vindication or enforcement upon the noncompliance by the patent holder with the condition of previous payment of the purchase money. Such must, of course, be the meaning of the quoted announcement; for otherwise the ruling, in which the writer concurs, that that act (1911) only established rules of evidence would be necessarily departed from, and thereby leave the decision Avith inconsistent conclusions pronounced.
¶2The act of 1911, when considered in connection with that of 1879, does not change the burden of proof from where it was under the act of 1879; but, and at most, it aids, arms, the patentee and his successors in right with means to meet his obligation to show prima facie that his purchase was within the benefit of the act of 1879.
¶32. The court beloAV having erred, as this court holds, in excluding the testimony of defendant that he had paid taxes on the land continuously for 21 years, beginning in 1890, and also in excluding the auditor’s deed to defendant, as color of title under which defendant entered the possession in 1890 — in both of which rulings the writer concurs — the writer is of the opinion that a reversal for these errors should enter. This result cannot, it seems to the writer, be soundly avoided by the further finding that the affirmative charge upon the issue of adverse possession was plaintiff’s due. If it would not too greatly lengthen this opinion at this time, I should set out the defendant’s testimony, by which, in my judgment, the matter was clearly made a jury ques*469tion. At a future and more convenient time this testimony will be fully stated, if not its material substance quoted.
¶4In my opinion the judgment should be reversed.