Clark v. Lyon

• Citation: 1867 WL 5297,45 Ill. 388
• Parties: WILLIAM CLARKv.JOSEPH LYON.
• Decision Date: 30 September 1867
• Court: Supreme Court of Illinois

45 Ill. 388

1867 WL 5297 (Ill.)

WILLIAM CLARK

v.JOSEPH LYON.

Supreme Court of Illinois.

September Term, 1867.

WRIT OF ERROR to the Circuit Court of Mercer county; the Hon. JOHN S. THOMPSON, Judge, presiding.

The opinion fully sets forth the facts in this case.

Messrs. J. N. & I. N. BASSETT, for the plaintiff in error.

Messrs. GOUDY & CHANDLER, for the defendant in error. Mr. JUSTICE WALKER delivered the opinion of the Court:

William Clark brought an action of ejectment, in the Mercer Circuit Court, against Joseph Lyon, to recover the W. 1/2 of the S. E. 1/4, section 14, T. 13, N. 1 W. It appeared in evidence on the trial in the court below, that the land was patented on the 6th day of October, 1817, to Daniel Dunovan. That he, on the 17th day of August, 1819, conveyed it to James Clark. That he, on the 22d of May, 1851, conveyed to William Clark, plaintiff below. It was also stipulated, that defendant below was in possession at the time the declaration was served on him.

Defendant set up as a defense a conveyance from David Graham to David H. Frisbie, dated January 23, 1858, also a deed from Frisbie to Solomon Lyon, dated November 1, 1861. A bond from Frisbie to Lyon, dated June 15, 1857, by which the obligor agreed to convey to the obligee the land in controversy, on the condition that the latter should pay to the former $300 on the 1st of January, 1858; and, on the 1st of February following, $100; on the 1st of January, 1859, $300; and on the 1st of January, 1860, $300. The bond contained this condition: “Now, if the said Solomon Lyon shall well and truly pay or cause to be paid the above named notes, and all the taxes assessed on said land, then the said D. H. Frisbie shall execute and deliver to the said Solomon Lyon a good and sufficient quitclaim deed to and for the above described premises, and give possession to the premises on the 1st of March, 1858, being the title which the said D. H. Frisbie acquired from David Graham.”

A bond from Graham to Frisbie, for the conveyance of the same land on the 10th of March, 1858, on the payment of the purchase money, was also read in evidence. This evidence was offered to show color of title, and was admitted without objection. Tax receipts to Solomon Lyon from the year 1859, paid on the 14th day of January of that year, to the year 1863, on the 3d of February of that year, inclusive, were offered in evidence; also a tax receipt to T. J. Jones, guardian of Samuel Lyon, dated December 24, 1864, for taxes on the land for the year 1864. They were admitted without any objections except as to their legal effect.

For the purpose of showing good faith, Graham was called as a witness, and he testified that he purchased the land from Sears in the fall of 1846, and received a quitclaim deed; that it was acknowledged before a justice of the peace; that Sears, his grantor, had a conveyance from Gates to himself, which was delivered to him when he purchased of Sears. It was dated previous to that time. He also delivered to Graham the patent for the land, on the back of which was a conveyance from Dunovan to Gates. That these deeds were not recorded, and were, with the patent, burned in his house in 1849.

That he went into possession of the whole quarter immediately after purchasing, and so remained until he sold to Pangburn the east half of the quarter, but still remained on the west half until he sold it to Frisbie; that the whole was under cultivation when he left it. Jones testified that he had known the land since 1850; that Graham then occupied it and continued in possession until 1857; that Dunn & Cox occupied it in 1857, and when Cox, who was the last to leave, moved away, Solomon Lyon moved on...