Burton v. Perry

• Decision Date: 03 April 1893
• Parties: BURTON et al. v. PERRY et al.
• Court: Illinois Supreme Court

146 Ill. 71

34 N.E. 60

BURTON et al.

v.PERRY et al.¹

Supreme Court of Illinois.

April 3, 1893.

Appeal from superior court, Cook county; Henry M. Shepherd, Judge.

Bill by James S. Perry and John N. Henderson against George W. Burton and others for partition. Complainants obtained a decree. Defendants appeal. Reversed.Wm. Garnett, Jr., and H. S. Mecartney, for appellant Louisville Banking co.

Woolfolk & Browning, for appellants Wallace, Burton, and Hansbrough.

Edmund S. Holbrook and A. D. Eddy, for appellees Perry and Henderson.

Crafts & Stevens, for appellees Mitchell and McCaffery.

MAGRUDER, J.

The complainants, Perry and Henderson, file this bill for the partition of 40 acres of land, and claim to be the owners of an undivided half thereof. The defendants deny the ownership asserted by the complainants, and contend that they are themselves the owners of the whole 40 acres. Therefore the first question to be determined is whether the complainants own any interest in the land, and, if they do, what interest.

It is not denied, that, on February 16, 1836, Isaac Cook, then holding the government title to 80 acres, of which the tract of 40 acres now in controversy is the south half, conveyed an undivided half of said 80 acres to Asa W. Chambers and Sheldon Benedict. The complainants claim title through a conveyance from Benedict to Chambers, and three conveyances from Chambers to themselves. Chambers and Benedict left Chicago in 1838. Benedict has never been seen or heard of but once since that time. It is said that in the year 1848 he made a visit to Chambers while the latter was living in the state of Texas, but after remaining with Chambers two or three weeks he disappeared, and all further trace of him has been lost. He paid no taxes upon the property in question after he left Chicago, nor do the records of Cook county, where these premises are located, show that he has ever made any conveyance of the land, or instituted any proceeding, or done any act indicating a claim of ownership, since the year 1838. Chambers, according to his own testimony, was not in Chicago from 1838 to 1872. During a period of more than 30 years his whereabouts were unknown, and were only discovered in the year 1871, or thereabouts, after considerable search by a party acting for, or in concert with, the complainants. After his disappearance, in 1838, he paid no taxes upon the land, nor did he or his grantees thereafter take any steps to assert title thereto until the filing of the bill in this case, in July, 1873. All the facts, however, in the present record, which tend to show laches by reason of delay in beginning suit, were before this court in 1884, and again in 1888. Perry v. Burton, 111 Ill. 138;Id., 126 Ill. 599, 18 N. E. Rep. 653. The only witness who testifies that a deed was made by Benedict to Chambers is Chambers himself. The latter swears that after leaving Chicago, in 1838, he remained about 10 months in Georgetown, Vermillion county, Ill.; that he went to Texas in June, 1841, taking Mrs. Chambers with him; that he lived in Navarro county, Tex., from 1843 to 1872, about two miles from a little town called Mt. Pisgah, containing 15 or 20 houses, 13 miles from Corsicana, the principal town of the county, and about 110 miles from Bryant, Brasos county, where the complainants, Perry and Henderson, who are attorneys at law, reside; that he never saw Benedict, after leaving Chicago, until 1848; that, in November of that year, Benedict came to his house, in Navarro county, ‘flat broke and afoot,’ saying that he came through Galveston, and had been in New Orleans and New York, and divers places; that he then sold to Chambers all his interest in this land, and other lands in Illinois, for $200, of which $75 was paid in cash, and for the balance he took a saddle horse; that Benedict then made a deed to Chambers of the land; that neither had any papers showing the description, but both remembered the description; that the deed was acknowledged before a justice of the peace, who is dead, and attested by two witnesses, who are both dead; that Benedict then rode away, and Chambers has never seen nor heard of him since, or of any of his relatives, if he had any; that Chambers never recorded the deed, but kept it for 14 years on his place in Texas; that in 1862 he left home, and deposited his papers in a trunk, in the care of a daughter then 25 years old; that the deed was lost during his absence, and he has never been able to find it.

The question as to the execution of the deed from Benedict to Chambers was passed upon by this court in the decision made in 1884. Perry v. Burton, 111 Ill. 138. Counsel for defendants refer to many circumstances brought to light by the evidence taken since the first and second hearings of the cause, which are alleged to demonstrate the falsity of the testimony given by Chambers. We do not deem it necessary, however, to enter upon a discussion of this subject, as we have reached the conclusion, for the reasons hereafter stated, that the defendants must be regarded as bona fide purchasers of the one-fourth interest formerly held by Benedict, without notice of the deed said to have been made by him to Chambers, and consequently are entitled to protection, as against the latter deed. Some time in 1871 or 1872, Chambers conveyed, or attempted to convey, all his interest in said tract of 80 acres, described as the E. 1/2 N. E. 1/4 section 20, etc., and in other lands in Illinois, to the complainants, and received therefor the sum of only $100. About the same time the complainants agreed with a realestate agent in Chicago to convey to him one-half of such interest in the land as they should finally recover, upon condition that he should take possession of the property, employ attorneys, perfect the title, and pay all costs, expenses, and attorneys' fees. We agree with counsel for the defendants that the agreement in question was champertous and void, and could not be enforced, as between the parties to it. Thompson v. Reynolds, 73 Ill. 11;Coleman v. Billings, 89 Ill. 183. But we do not regard such agreement as material in the consideration of this case, as the present suit is not between the complainants and the agent so employed by them. Torrence v. Shedd, 112 Ill. 466, 3 Amer. & Eng. Enc. Law, p. 86. It is not denied by the complainants that, in the fall of 1844, Isaac Cook was the owner of the other undivided one-half of the 80 acres which had not been conveyed in 1836 to Chambers and Benedict. The undivided half so conveyed to Chambers and Benedict was sold for taxes to Cook on November 28 1842, and the sheriff issued a tax deed therefor to him on December 9, 1844. It is claimed by the defendants that Cook, holding under said tax deed, and under the deed to him of the other half, as color of title, paid all the taxes legally assessed upon the whole tract of 80 acres from 1844 to 1854, inclusive, while the land was vacant and unoccupied. We have heretofore passed upon the question of the payment of taxes by Cook under said tax deed, and have held that the payment of taxes by him during the period aforesaid was not established by proof. Perry v. Burton, 111 Ill. 138. Counsel claim that there is now new evidence in the record which shows that Cook did pay the taxes on the undivided half conveyed to him by the tax deed for a period of seven successive years between 1844 and 1854. We find no evidence whatsoever in the record which shows that the 80 acres were vacant and unoccupied for seven successive years during the period from 1844 to 1854. Cook says nothing upon this subject, and the other witnesses, to whose testimony we have been referred, speak of the land as it was after 1854. In the absence of proof that the land was vacant and unoccupied, or that Cook was in possession of it, during said period of seven years, it is immaterial, so far as the bar of the statute of limitations is concerned, whether the taxes were paid or not; and any discussion of the question whether the defense based upon the payment of taxes under the tax deed to Cook has or has not become res adjudicata under the former decisions of this court would be unnecessary and fruitless.

In 1854 Cook sold the 80 acres to John W. Finnell and Richard C. Wintersmith for $4,000, and afterwards, by warranty deed dated July 9, 1857, conveyed to them the 80 acres so sold. On January 9, 1856, each undivided 1/2 of said 80 acres, being the E. 1/2 N. E. 1/4 section 20, etc., was separately sold for the taxes of 1855 to Frederick R. Wilson, and in pursuance of such sale the sheriff afterwards executed a tax deed, dated August 23, 1859, to Wilson, conveying to him the whole of the 80 acres. Afterwards, by deed dated April 26, 1865, Wilson conveyed the S. 1/2 of the E. 1/2 N. E. 1/4 section 20, etc., being the 40 acres in controversy in this suit, to Finnell, and by deed of the same date conveyed the N. 1/2 of said E. 1/2, etc., to Wintersmith. By way of further effecting a partition of the 80 acres between them, Wintersmith or his grantees, by deed dated April 24, 1869, conveyed to Finnell said S. 40 acres, and, by deed of the same date, Finnell conveyed said N. 40 acres to Wintersmith or his grantees. On August 28, 1869, Isaac Cook and John W. Finnell and Henry A. Montgomery and Abner Taylor, the two latter being grantees through mesne conveyances from said Wintersmith, filed a bill in the superior court of Chicago against the unknown heirs and devisees of Asa W. Chambers, deceased, and the unknown heirs and devisees of Sheldon Benedict, deceased, as defendants. This bill set up that Cook conveyed an undivided 1/2 of E. 1/2 N. E. 1/4 of said section 20 to Chambers and Benedict, as above stated; that by deed dated November 10, 1845, Norman B. Judd had deeded the other undivided 1/2 of said 80 acres to said Cook; that in November 1845, Chambers and Benedict each owed more than $1,000 to said Cook, and in consideration of such...