Utica Township, Clarke County, v. Miller et al. expressly designated the school corporations as "school township, town or city." By that section it is provided, that "Process in such suits against a school township, town or city, shall be by summons executed by leaving a copy thereof with the trustee of such township, town or city, ten days before the return day thereof; and in case of an appeal, similar notice of the time of hearing thereof shall be given." Acts 1865, Reg. Sess., pp. 3, 32. Here is not only an explicit recognition, by the Legislature, of the name of school corporations as school townships, towns and cities, but a mode of bringing them into court is provided for, different, at least so far as towns and cities are concerned, from that in relation to the civil organizations; and in relation to the school townships, towns and cities, a notice of the time of the hearing of a case on appeal is required, which is not required in the case of the civil organizations. J We are satisfied upon a review of the questions, that the school corporations of the several townships, towns and cities of the State are distinct and separate from the civil corporations, and that the name of the former is the same as the latter with the word "school" prefixed, to distinguish them from the latter; and that, in accordance with several rulings of this court, hereinbefore referred to, when, as in this case, the civil corporation is sued, the facts alleged showing only a cause of action against the school corporation, the complaint does not state facts sufficient to constitute a cause of action. In the case of The Town of Noblesville v. McFarland, 57 Ind. 335, this court said, in speaking of the character of the town of Noblesville as a school corporation: "There are, we think, two modes in which this character, as above mentioned, may be shown: 1. By designating the character, by prefixing an adjective to the name, as 'The School Town of Noblesville;' 2. By averments in the Buckley et al. v. Taggart. complaint, such as are made in this, that it contracted, and is suing or being sued, in its character of a school corporation, by its corporate name. In such case, the judgment and its execution would follow the averments in the complaint and be governed thereby." But the above case was decided on the theory that the names of the two corporations, the school and the civil, were identical. In this respect we think we fell into an error; and in so far as that case is in conflict with the present, it must be overruled. It is claimed that the complaint ought to be deemed as amended by inserting the word "school" before the name of the defendant, inasmuch as the body thereof shows that it was the school township which the plaintiffs were seeking to hold liable. But we do not think a complaint not stating facts sufficient to constitute a cause of action can be deemed so amended in this court as to make it good. Sinker, Davis & Co. v. Fletcher, 61 Ind. 276. The amendment which we are asked to consider as made is one which involves an entire change of the party defendant. We are not aware of any authority for considering such an amendment as made. The judgment below is reversed, with costs, and the cause remanded, for further proceedings in accordance with this opinion. NOTE. HOWK, C. J., having been of counsel in the cause, was absent when it was considered. BUCKLEY ET AL. v. TAGGART. ADVERSE POSSESSION.-Possession of Trespasser Subservient to Owner.—One who enters upon land without any title or claim or color of title thereto holds possession thereof in subservience to the legal owner. SAME.-Color of Title Acquired by Trespasser.—Tax Title.—Conveyance of Buckley et al. v. Taggart. Land Adversely Held.-Real Estate, Action to Recover.—If such person. while so holding possession, obtain a conveyance for the land under a sale of the same for taxes, and thereafter claims possession as the owner under such conveyance, a subsequent conveyance of the same land, by the legal owner to a third person, is void as to him in possession, and such subsequent grantee can not, under his conveyance, maintain an action in his own name to recover the land, though such tax title be invalid. From the Bartholomew Circuit Court. W. W. Herod and F. Winter, for appellants. WORDEN, J.-This was an action by the appellee, Taggart, against the appellant Buckley and others, to recover certain real estate. Lewis H. Weller, who was made a defendant, filed an answer by way of counter-claim, setting up title in himself to the land, and praying a recovery thereof, and that his title might be quieted as against a tax deed held by Buckley. The cause was tried by the court, resulting in a finding and judgment for the plaintiff, over a motion by Buckley for a new trial. The material facts of the case, as gathered from the evidence, seem to be as follows: It is not disputed that in 1871 Lewis H. Weller was the owner of the land. At that time the land was unoccupied, but had a little clearing of five or six acres with a cabin upon it. Otherwise the land was unenclosed. In 1871 the defendant Buckley entered upon the enclosure and took possession thereof as a trespasser and without right. He had, however, possession of no portion of the unenclosed land until after his purchase of the land at a tax sale hereinafter mentioned. On the 5th of February, 1872, the defendant Buckley bought the land for taxes, and soon after received the auditor's certificate of purchase, and on the 6th of February, 1874, he received the auditor's deed. Buckley seems to Buckley et al. v. Taggart. have taken possession of all the land by virtue of his purchase at the tax sale, claiming to own it in good faith, so far as we can see, believing his tax title to be valid. It is not claimed, however, that the tax title was valid, and we therefore need not enter upon the consideration of its validity. On the 7th day of March, 1874, Lewis H. Weller and his wife executed a conveyance of the land to Adoniram J. Weller, and on the 16th day of March, 1874, Adoniram J. Weller and his wife executed a conveyance of the land to the appellee, Taggart. Afterward, on the 11th day of December, 1874, Lewis H. Weller and his wife executed a quitclaim deed for the land to the defendant Buckley. It is claimed by the appellant, that, as he was in possession of the land, claiming title thereto by virtue of his tax deed, which gave him color of title, at the time of the execution of the deed from Lewis H. Weller to Adoniram J. Weller, the latter deed was void as to the appellant, and in this view we concur. The same may be said in respect to the deed from Adoniram to the appellee, Taggart. These deeds being void as to Buckley, they convey no title to the land as against him, and Taggart, therefore, could not recover the land, in his own name, from Buckley. See Steeple v. Downing, 60 Ind. 478. The counsel for the appellee, in order to avoid the effect of the adverse possession of the land by Buckley at the time of the execution of the deed by Lewis H. Weller, state two propositions: 1. That the law presumes, the contrary not being shown, that a man in possession without title intends to hold for the true owner; that, when he enters without claim or right, the law adjudges the possession to be in subservience to the legal owner. Jackson v. Thomas, 16 Johns. 293; Harvey v. Tyler, 2 Wal. 328; Pierson v. Doe, 2 Ind. 123. Buckley et al. v. Taggart. 2. That a party in possession of lands in privity with the rightful owner is incapable in law of imparting by any act of his own an adverse character to his possession; and, in order to deny or dispute the title, he must first surrender the possession and place the owner in the condition in which he stood before the possession was taken under him. The first proposition may be conceded. It is sustained by the authorities above cited, and others. Buckley, however, was only in possession of a small portion of the land before his claim arose under his tax title. He could not be required to surrender that which he did not possess, before setting up his adverse claim under his tax deed. But we will consider the case as if he had been in possession of the whole land before the accruing of his tax title. The question then arises whether Buckley, being thus in possession of the land without title, and in subservience to the title of the true owner, could, upon the accruing of his tax title, set up a claim to the land, under that title, adverse to the true owner, without first surrendering to him the possession. We think he might; and that the second proposition above stated, though it might be correct as applied to some states of facts, has no application to such a case as the present. In the case of Jackson v. Thomas, supra, the court said, SPENCER, C. J., delivering the opinion: "If one enter on land without any title or claim, or color of title, the law adjudges the possession to be in subservience to the legal owner, and no length of possession will render the holding adverse to the title of the owner; but if a man enters on land, without claim or color of title, and no privity exists between him and the real owner, and such a person, afterwards, acquires what he considers a good title, from that moment his possession becomes adverse." A tenant, it is true, may not set up a title hostile to that |