Converse v. Calumet River Ry. Co.

• Decision Date: 21 February 1902
• Citation: 195 Ill. 204,62 N.E. 887
• Parties: CONVERSE v. CALUMET RIVER RY. CO.
• Court: Illinois Supreme Court

195 Ill. 204

62 N.E. 887

CONVERSE

v.CALUMET RIVER RY. CO.

Supreme Court of Illinois.

Feb. 21, 1902.

Appeal from circuit court, Cook county; E. Hanecy, Judge.

Ejectment by James W. Converse against the Calumet River Railway Company. There was a judgment for defendant, and plaintiff appeals. Reversed.

Oliver & Mecartney, for appellant.

Loesch Bros. & Howell, for appellee.

HAND, J.

This is a suit in ejectment brought by the appellant against the appellee in the circuit court of Cook county to recover lots 13, 14, and 15 in block 26 in Russell's subdivision (east of the river) of the S. 1/2 of section 18, township 37 N., range 15 E. of the third P. M., in Cook county, Ill. A jury having been waived, and the cause coming on for trial before the court, appellant, to establish title in him to the real estate in question, offered in evidence (1) a written stipulation between the parties that on December 23, 1868, William Davies was the owner in fee simple of said real estate; (2) a stipulation between the parties that on February 11, 1869, William Davies, being the owner of said real estate in fee simple, conveyed it by warranty deed to Robert B. Parker, which deed was recorded in the recorder's office of Cook county on September 8, 1869; (3) a quitclaim deed dated August 16, 1887, from Robert B. Parker and wife to appellant, conveying said real estate. Appellee, to establish title in it, offered in evidence: (1) A stipulation between the parties showing the destructionby fire of all public records of deeds in Cook county made prior to October 9, 1871; that on February 1, 1887, Handy & Co. had charge and control of the only ante-fire abstracts in said county; that on the last-named date appellee requested Handy & Co. to furnish the names of all owners or persons interested in said real estate, for the purpose of making such owners and interested persons parties to a condemnation proceeding; that said abstracters furnished what purported to be a complete list of such persons, and that the persons whose names were thus furnished were made parties defendant in a condemnation suit commenced on March 29, 1887, against said real estate; that the list so furnished did not contain the name of Robert B. Parker, and he was not made a party to the condenmation suit. (2) The record of said condemnation duit, including the verdict and judgment, which judgment, after directing the petitioner ‘to pay to the county treasurer, for the benefit of the owners and parties interested, or to the owners and parties interested, the sum of $35 per lot,’ provided ‘that, upon said payments being made, said petitioner, the Calumet River Railway Company, shall enter upon said lots * * * as in said petition and hereinbefore described, and the use of the same as and for the uses and purposes of its railroad, as provided by law.’ (3) A stipulation between the parties that on the 29th day of July, 1887, appellee paid to the county treasurer of Cook county, for the benefit of the owners of said real estate, the sum of $35 per lot, in accordance with said judgment; that no part of said money has ever been received, either by appellant or the said Parker; that, immediately after said payment, appellee took actual possession of said real estate, built its railroad thereon, and has ever since been in actual possession of the same as and for railroad purposes, operating its railroad thereon, claiming under said condemnation judgment, and has paid all taxes assessed on said lands for the years 1887 to 1897, both inclusive. At the conclusion of the evidence, appellant presented a written finding in favor of appellant, but the court refused to so find. The appellant then presented the following propositions of law, which were marked ‘Refused’ by the court: ‘(1) The court holds that the condemnation judgment herein did not constitute color of title, within the meaning of section 6, chapter 83, of the Illinois Statutes. (2) The court holds that the condemnation judgment herein did not give to the defendant a paper title to the real estate in question, within the meaning of section 6, chapter 83, of the Illinois Statutes. (3) The court holds that the possession by the defendant for its right of way does not constitute actual residence on said land, within the meaning of section 4, chapte 83, of the Illinois Statutes.’ The court having found defendant not guilty, and having entered judgment against appellant for costs, an appeal has been prosecuted to this court.

The sole question presented in this case for decision is whether or not the condemnation judgment offered in evidence, followed by payment, is color of title, within the meaning of section 6 of the statute of limitations (Hurd's Rev. St. 1899, c. 83, p. 1118, § 6). Leaving out all elements not in dispute, said section reads as follows: ‘Every person in the actual possession of lands or tenements, under claim and color of title, * * * shall be held and adjudged to be the legal owner of said lands or tenements, to the extent and according to the purport of his or her paper title.’ Under this section of the statute the color of title required must be a ‘paper title,’ and cannot exist, in whole or in part, in parol. Woodward v. Blanchard, 16 Ill. 424;McClellan v. Kellogg, 17 Ill. 498;Bride v. Watt, 23 Ill. 507;Shackeford v. Bailey, 35 Ill. 387;Huls v. Buntin, 47 Ill. 396; Morrison v. Norman, Id. 477; Rigor v. Frye, 62 Ill. 507;Sontag v. Bigelow, 142 Ill. 143, 31 N. E. 674,16 L. R. A. 326;Tate's Heirs v. Southard, 10 N. C. 119, 14 Am. Dec. 578;Wright v. Mattison, 18 How. 50, 15 L. Ed. 280. And such ‘paper title’ must purport upon its face to convey or transfer title. Rawlings v. Bailey, 15 Ill. 178;Dickenson v. Breeden, 30 Ill. 279;Hardin v. Crate, 78 Ill. 533;Kruse v. Willson, 79 Ill. 233;Coleman v. Billings, 89 Ill. 183;Bolden v. Sherman, 110 Ill. 418;Lightcap v. Bradley, 186 Ill. 510, 58 N. E. 221;Perry v. Burton, 111 Ill. 138.

In Rawlings v. Bailey, supra, it was held that a guardian's deed is inoperative until approved by the court, and that such a deed is not ‘color of title.’ The court say: ‘By the words ‘claim and color of title made in good faith’ must * * * be understood such a title as, tested by itself, would appear to be good. * * * The guardian's deed did not constitute a prima facie title, as * * * something else must be shown to exist in connection with it in order to pass the title.' In Bride v. Watt, supra, it was held that a tax certificate under which the holder afterwards procured a deed was not color of title. The court, in giving a construction to the statute in question, and in defining ‘color of title,’ said: ‘We are, however, aided, to a limited extent, in ascertaining that intention from the latter portion of the enacting clause of the section itself, which, by its terms, confines it to paper title. That clause excludes all verbal agreements and equitable titles not supported by paper or written title. * * * Had the act declared that the holder of color of title, paying taxes as required by this law, should be adjudged to be the holder of the legal title to the extent and according to the purport of his color of title, agreement for a title, or claim of title, then the act might be construed to embrace every kind of title or claim which has been held to be color under the twenty years' limitation laws; but that construction is excluded by the terms of the act itself.’ After saying that the tax certificate does not purport to pass any title, the court say: ‘To confine such a title according to its purport would only be to make the instrument valid by curing defects which it might contain. * * * Stephen, in his treatise on Pleading, defines it [color of title] to mean an apparent or prima facie right. * * * The legislature, having excluded the broadest and most comprehensive sense of the term, must have intended to use it in the sense in which it is defined by these authorities when they confine it to paper or written color of title. If so, the instrument relied upon as color must purport on its face to convey title. * * * Not that the title should purport, when traced back to its source, to be an apparently legal and valid title, but the instrument under which the occupant holds and upon which he relies must itself profess to convey a title to the grantee.’ In Dickenson v. Breeden, 30 Ill. 325, it is said: ‘What is color of title made in good faith, under that section? For an answer to his question we have only to look to the decisions of this court. In Woodward v. Blanchard, 16 Ill. 424, it was said that color of tite was a question of law, and good faith a question of fact, and that color of title must be a paper title, and whether originating in a wrong or a right made no difference. There must be some written evidence of title under the statute, and, as the court say, ‘an act or motion of the mind.’ It must be acquired honestly. It must be such a title as a reasonably intelligent man would have confidence in. Acquiring such a title would be color of title made in good faith. In Irving v. Brownell, 11 Ill. 402, this court said: ‘By the words ‘claim and color of title made in good faith’ we must understand such a title as, tested by itself, would appear to be good; that is, a prima facie title.' We understand by this that any sort of title a reasonable man would pay money for, and pay the yearly taxes assessed upon it for a series of years, is color of title made in good faith. In more recent cases this subject has been discussed by this court, and in Dunlap v. Daugherty, 20 Ill. 398, we said that an executory contract for a conveyance was not color of title. In Bride v. Watt, 23 Ill. 507, we held that a certificate of purchase at a tax sale was not color; that such certificate does not purport to pass any title, either in fee or any other estate. An instrument of writing, to be effectual as color, must purport on its face to convey title. It must apparently...