Burns v. Edwards

• Decision Date: 11 November 1895
• Citation: 163 Ill. 494,45 N.E. 113
• Parties: BURNS v. EDWARDS et al.
• Court: Illinois Supreme Court

163 Ill. 494

45 N.E. 113

BURNS

v.EDWARDS et al.

Supreme Court of Illinois.

Nov. 11, 1895.

Error to circuit court, Clay county; E. D. Youngblood, Judge.

Action in ejectment by Nathaniel M. Burns against William Edwards, Young Edwards, and Edward H. Hawkins. Judgment for defendants, and plaintiff brings error. Reversed.

R. S. C. Reaugh, for plaintiff in error.

Barnes & Rose and Nagle & Shriner, for defendants in error.

MAGRUDER, C. J.

This is an action brought by plaintiff in error against defendants in error for the recovery of certain lands in Clay county, which are thus described in the declaration: ‘E. 1/2, N. E. 1/4, Sec. 4, and all that part of E. 1/2, S. E. 1/4, Sec. 4, that lies north of the middle of the Little Wabash river, all in town 3 N., R. 7 E. of 3 P. M.; containing 100 acres.’ Plea of not guilty was filed. The case was tried before a jury, who found the defendants not guilty. Motion for a new trial was overruled, and judgment for defendants was rendered upon the verdict. The present writ of error is sued out for the purpose of reviewing such judgment.

Plaintiff's attorney filed an affidavit under the statute that plaintiff claimed title through a common source of title with the defendants, namely, from Martin R. M. Wallace. The plaintiff then introduced in evidence a quitclaim deed, dated October 2, 1894, and recorded October 4, 1894, exected by Wallace and his wife to plaintiff, conveying E. 1/2, N. E. 1/4, and E. 1/2, S. E. 1/4, of said section 4, containing 160 acres; and also a deed dated May 22, 1865, and recorded May 31, 1865, executed by a master in chancery to Wallace, in pursuance of a sale under a decree of foreclosure, rendered by the circuit court of Clay county in the case of Martin R. M. Wallace against Benjamin W. Edwards and Sarah A. Edwards. The defense of the defendants was possession and payment of taxes for seven successive years under claim and color of title, etc. The deed introduced as color of title was a quitclaim deed, dated June 5, 1885, recorded June 10, 1885, executed by William I. Clifton, clerk of the county court, to ‘Burns & Hawkins,’ conveying E. 1/2, N. E. 1/4, containing 78.36 acres, and E. 1/2, S. E. 1/4, containing 80 acres, of said section 4, and reciting sale on June 4, 1883, for nonpayment of taxes. Defendants also introduced in evidence a deed dated December 24, 1891, and recorded December 26, 1891, executed by Richard J. Burns and wife to Edward H. Hawkins, conveying all that part of E. 1/2, S. E. 1/4, that lies north of the center of the Little Wabash river, 20 acres, and also E. 1/2, N. E. 1/4, 80 acres, of said section 4; also a deed dated and recorded December 26, 1891, executed by Hawkins and wife to the appellees William Edwards and Young Edwards. The defendants introduced tax receipts for the purpose of showing payment of taxes for the years from 1885 to [163 Ill. 497]1893, inclusive, and examined witnesses upon the question of possession.

The judgment must be reversed. There was not proof of such payment of taxes as the law requires. ‘Inasmuch as the payment of taxes under color of title operates to defeat the paramount and all other titles, when relied on, the proof must be clear and convincing.’ Hurlbut v. Bradford, 109 Ill. 397;Perry v. Burton, 111 Ill. 138. The tax receipt introduced to show the payment of taxes for the year 1889 describes the property as the ‘E. 1/2, N. E. 1/4, N. side E. 1/2, N. E. 1/4.’ This receipt does not show the payment of taxes on any part of the E. 1/2 of the S. E. 1/4 of the section. The tax receipt itself was the only evidence of the payment of the taxes for 1889, and no oral or documentary evidence was introduced to show that the words ‘N. side E. 1/2, N. E. 1/4’ were a mistake for ‘N. side E. 1/2, S. E. 1/4.’ There was thus a break in the chain of payments on that part of the premises which was in the S. E. 1/4 of the section. If the year 1889 be taken out, there was not payment of taxes for seven successive years upon the land in the S. E. 1/4 of the section; and yet the judgment was for the land in the S. E. 1/4 as well as for that in the N. E. 1/4. Again, the tax receipt for the year 1888 describes the land in the S. E. 1/4 as follows: ‘N. end E. 1/2, S. E. 1/4.’ The receipts for the years 1890, 1891, and 1892 describe said land as follows: ‘N. side E. 1/2, S. E. 1/4,’ and the receipt for 1893 describes it as ‘N. side S. E. 1/4.’ No evidence was introduced to show that the north end, or north side, of the S. E. 1/4, or of the E. 1/2, S. E. 1/4, was the same as ‘all that part of E. 1/2, S. E. 1/4, that lies north of the middle of the Little Wabash river.’ ‘Tax receipts for the taxes on a part of the survey, without showing what part, are not sufficient of themselves, unexplained, to prove the payment of taxes.’ Stumpp v. Osterhage, 111 Ill. 82.Again, possession of the premises for a full period of seven years is not shown. It appears from the testimony that no one was in possession from October, 1890, to December, 1891. There was a hiatus in the possession for a period of more than one year. Schenck v. White, 53 Ill. 358. Before protection can be afforded under the limitation act of 1839, the possession must be continuous, as well as adverse, visible, and notorious. Medley v. Elliott, 62 Ill. 532. If there is no actual inclosure or residence, there must be a continuous dominion, manifested by continuous acts of ownership. Downing v. Mayes, 153 Ill. 330, 38 N. E. 620;Johns v. McKibben, 156 Ill. 71, 40 N. E. 449. Here there were no acts of ownership, nor was there any other manifestation of dominion during the period above named.

The plaintiff asked, and the court refused, an instruction to the effect that, where a plaintiff states on oath upon the trial that he claims title through a common source with the defendant, it is sufficient for him to show title from such common source. We see no reason why this instruction should not have been given. Plaintiff made the affidavit that he claimed title in fee simple to the lands in question through Wallace, as a common source of title with defendants, in accordance with the statute. 1 Starr & C. Ann. St. p. 986. Neither of the defendants, nor any agent or attorney for them, denied on oath that they claimed title through such source, or that they claimed through some other source. Where the plaintiff in ejectment swears that both parties claim title through a common source, he is not obliged to go back of the common source, and trace his title from the government, unless the defendant denies under oath that he claims title under such source, or swears that he claims title under some other source. Railway Co. v. Hardt, 138 Ill. 120, 27 N. E. 910; Railroad Co. v. Parrott, 92 Ill. 194;Smith v. Laatsch, 114 Ill. 271, 2 N. E. 59. But, in our view of the case, there is a more serious objection to the defense set up by the defendants than any which has yet been referred to. The tax deed relied upon as color of title was executed in pursuance of a sale made on June 4 or June 5, 1883, for nonpayment of taxes. This sale was made by Edward H. Hawkins, acting as crier or auctioneer for the county treasurer and collector. Hawkins was at that time clerk and deputy of the county collector. The revenue act (sections 152, 153) provides that collectors may appoint deputies, and for warrants to such deputies. 2 Starr & C. Ann. St. pp. 2073, 2074. It also provides (section 201) that the collector shall attend at the courthouse and offer for sale the delinquent lands, either in person or by deputy. Id. p. 2094. At the sale so made by Hawkins, the land in question was bought by the firm of Burns & Hawkins, engaged in the business of making abstracts of title and handling real estate, of which firm Edward H. Hawkins was a member. In other words, Hawkins, acting as deputy collector, sold the land to himself, or to a firm of which he was a member. It is a well-settled rule that a trustee or agent to purchase or sell property is forbidden to purchase from or sell to himself. Equity will not allow any one to profit by a violation of his own duty. A design on the part of such a trustee or agent to purchase or sell on his own account creates an interest which is opposed to his duty to another. ‘The rule applies to sales made at public auction, and to judicial sales as well as private sales. It extends not only to the agent himself, but to those in his immediate employ, who are engaged in the transaction of his business, which is,...