Dalton v. Abram Lucas.

• Decision Date: 31 January 1872
• Citation: 63 Ill. 337,1872 WL 8188
• Parties: AMAZIAH DALTONv.ABRAM LUCAS.
• Court: Illinois Supreme Court

63 Ill. 337

1872 WL 8188 (Ill.)

AMAZIAH DALTON

v.ABRAM LUCAS.

Supreme Court of Illinois.

January Term, 1872.

APPEAL from the Circuit Court of Logan county; the Hon. THOMAS F. TIPTON, Judge, presiding.

This was an action of ejectment, brought by Dalton, to recover a tract of land. He showed patent from the United States to John Marshall Dec. 24, 1849, and deed from Marshall to himself, June 21, 1871. The defendant, Lucas, exhibited a sheriff's tax deed dated July 1, 1862, upon a sale made June 25, 1860, and proved possession with payment of taxes for more than seven years. The plaintiff then proved by the county clerk that he had searched the records and files of his office for the affidavit of notice which is required to be made prior to the execution of the tax deed by the sheriff, and that his office contained no such paper, but that he thought his predecessor had told him that the affidavit was made.

Judgment was rendered for the defendant, affirming his tax title.

The motion of the plaintiff for a new trial being overruled, he brings his appeal to this court on bill of exceptions.

Mr. S. A. FOLEY, for the appellant.

Messrs. BEASON & BLINN, for the appellee.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

The appellant deduces a perfect title to the land in controversy through the patentee from the Government to himself.

The appellee claims the same premises by virtue of a tax deed executed to him on the first day of July, 1862, by the sheriff of Logan county, which he offered in evidence as claim and color of title, together with proof of the payment of taxes and possession for a period of seven successive years.

The only question suggested and argued by counsel is, whether the appellee obtained the deed upon which he relies to constitute color of title, in good faith.

The deed was not offered as paramount title, and where offered as claim and color of title, if the element of good faith is wanting, the party can not avail of it, even for the purpose of defending his possession. This doctrine is as well settled as any rule of property in this State.

In Bowman v. Wettig, 39 Ill. 416, it was held that a party holding a certificate of purchase of land at a tax sale, who accepts a deed therefor before the two years allowed for redemption expires, knows that he is not entitled to it, and can not be considered as acquiring the color of title which such deed, if he was entitled to it, would give him, in good faith, within the meaning of the first or second section of the act of 1839.

In the case at bar it does not appear that the appellee gave the statutory notice before taking out his deed, and this fact is relied on to show that he acted in bad faith.

The constitution of 1848, and the statute passed in pursuance thereof, both require that the purchaser at a tax sale shall give notice of his purchase to the owner or party in whose name the land is assessed, so that such party may have the opportunity to redeem, and a person who buys at such a sale will be presumed to be familiar with these provisions of the constitution and the statute that have been so long in force in this State.

The law makes it the duty of the purchaser to give such notice, and where a party knowingly omits to comply with this provision of the statute, before taking out his deed, it must be held that he procured the deed in fraud of the rights of the true owner. The very law under which he made the purchase makes it his duty to give the...