Wettig v. Bowman

• Decision Date: 31 January 1868
• Citation: 47 Ill. 17,1868 WL 4921
• Parties: ANDREW WETTIGv.JOHN B. BOWMAN.
• Court: Illinois Supreme Court

47 Ill. 17

1868 WL 4921 (Ill.)

ANDREW WETTIG

v.JOHN B. BOWMAN.

Supreme Court of Illinois.

January Term, 1868.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of St. Clair county; the Hon. JOSEPH GILLESPIE, Judge, presiding.

The opinion states the case.

Mr. GUSTAVUS KOERNER, for the appellant.

Mr. W. H. UNDERWOOD, for the appellee.

Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court:

This was an action of ejectment in the St. Clair Circuit Court, brought by John B. Bowman against Andrew Wettig, which resulted in a verdict and judgment for the plaintiff. The defendant, to reverse this judgment, brings the record here by appeal, and the only question he presents, is, was the deed of the sheriff, introduced by the defendant and excluded by the court, color of title?

It was an action by the holder of the paramount title against a tax title claimant, claiming under the first section of the limitation act of 1839. This statute, in order that a bar to a recovery may be established, requires proof, not only of claim and color of title made in good faith, but also a continuous possession under this color, for seven successive years, accompanied by the payment of all the taxes legally assessed upon the land during that time. All these concurring, the holder of such color of title is adjudged the legal owner of the lands to the extent, and according to the purport of, his paper title, and the bar to a recovery is complete.

It is wholly immaterial whether the deed was color of title or not, if possession did not accompany it, and the payment of the taxes the requisite time did not concur.

The bill of exceptions shows that the color of title was acquired by a sheriff's deed on a sale for taxes, in 1852. Admitting, then, the deed was color made in good faith, to complete the bar, it was incumbent on the holder to show actual possession for seven successive years thereafter, which, it appears, by the bill of exceptions, he did show, and also the payment of all taxes legally assessed upon the land for the same seven successive years, which, it appears by the same bill of exceptions, he did not show, his admission being found therein, that he did not pay the taxes for the year 1858. Giving to the deed all the effect that appellant claims for it, and admitting the requisite possession, there is still absent the other most essential requirement, the payment of taxes for seven successive years, in concurrence with the color of title.

To supply this defect, appellant contends that the act of 1859, entitled “An act for the relief of certain persons in the American Bottom,” in force February 24, 1859, relieved him from the payment of this tax. An examination of this act, its object and purposes, as set forth in the preamble and in the body of the act, shows, most conclusively, that a resident on a town lot in a town located in the American Bottom, or the owner of such lot, was not in the contemplation of the general assembly. It releases only to those residents whose farms or improvements were submerged by the overflow of the Mississippi river in the summer of 1858--whose crops were damaged or destroyed by the high water--and the provisions of the act were expressly limited to those persons, the greater part of whose improvements, except buildings, were submerged.

But if the...