Hubbard v. Kiddo

• Citation: 87 Ill. 578,1877 WL 9900
• Parties: NANCY HUBBARD et al.v.RICHARD KIDDO.
• Decision Date: 30 September 1877
• Court: Supreme Court of Illinois

87 Ill. 578

1877 WL 9900 (Ill.)

NANCY HUBBARD et al.

v.RICHARD KIDDO.

Supreme Court of Illinois.

September Term, 1877.

APPEAL from the Circuit Court of Mercer county; the Hon. GEORGE W. PLEASANTS, Judge, presiding.

Messrs. PEPPER & WILSON, for the appellants.

Mr. ISAAC N. BASSETT, for the appellee.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

Appellants do not controvert the fact, that appellee, on the trial, established color of title acquired in good faith and seven successive years payment of taxes under such title, but they contend the testimony was not sufficient to establish possession of the land in dispute, uniting with color of title and payment of taxes, as required to constitute paramount title, and this, as we understand the record, is the only controverted question in the case.

The southwest quarter of sec. 33, township 14 north, range 4 west, which includes the land in dispute, was sold for the taxes of 1839, and, under such sale, deeded to Alexis Phelps Nov. 24, 1843. Alexis Phelps conveyed the quarter to William Burns Dec. 1, 1843. In 1845 a judgment was obtained against William Burns in the circuit court of Mercer county, upon which an execution issued and the land was sold, and, under the sale, Willard Hubbard obtained a deed of the quarter section of land on the 6th day of September, 1847. On the 21st of September, 1851, Willard Hubbard conveyed to William Burns the northeast quarter of the tract, which is the land in dispute, and he, on the 5th day of February, 1855, conveyed to the plaintiff.

William Burns was called as a witness, and testified: “The quarter was considered brush land, although there was considerable timber on it when I bought it. I was living one and a half miles from the land, and used the forty to get timber whenever it was necessary for firewood and rail timber. I can not say definitely how much I used, but I used wood entirely for fuel and got it in that neighborhood; some I got elsewhere, but I got from the forty from year to year, as it suited me, until I sold to plaintiff. I think no one else got from it while I owned it.” On cross-examination the witness said: “I lived on the prairie several years before I bought this land. I had no timber before I bought this. * * * I tried to save the timber after I bought it, and when I cut on it I claimed title.” The plaintiff testified: “I have known the land twenty-six or twenty-seven years. The quarter section was pretty much all timber except two or three acres. * * * Mr?? Burns used it for timber only, from the time he came to the county, twenty-eight years ago, until I got it. He owned sixty-five acres of prairie land on the south-west of 26, on which he lived, and had it in cultivation. He used the timber for rails; I saw him cut and haul them. * * * I bought Burns' other land the same time I bought this; I reside three-quarters of a mile from the land in controversy.”

On cross-examination, he said: “I saw Burns cut and haul rail timber two years before I bought it; can not say how much he cut, but I saw him once or twice cutting. * * * I took timber off two different years; I made three sides of a fence around a twelve acre tract, and also got some gate posts, and in 1862 or 1863 I got some timber for a bridge. I got the rails in 1855 or 1856, and the gate posts in 1857 or 1858.”

On re-examination, the witness said: “The land had a fine growth of young timber on it, and is more valuable for growing timber than for any other purpose, and I kept it for the young growth of timber.”

It was admitted on the trial that the taxes for the years 1852, 1853 and 1854 were paid by Mr. Burns, and the taxes of 1855, '56, '57, '58, '59, '60 and 1861 were paid by the plaintiff. Were these facts sufficient to authorize the court, sitting as a jury, to find that plaintiff had color of title, seven years payment of taxes, and possession? It is not necessary that land should be inclosed with a fence or that a house...