Enos v. Buckley

• Decision Date: 31 January 1880
• Citation: 94 Ill. 458,1880 WL 9972
• Parties: AGNES D. ENOS et al.v.JAMES N. BUCKLEY.
• Court: Illinois Supreme Court

94 Ill. 458

1880 WL 9972 (Ill.)

AGNES D. ENOS et al.

v.JAMES N. BUCKLEY.

Supreme Court of Illinois.

January Term, 1880.

WRIT OF ERROR to the Circuit Court of Menard county; the Hon. CYRUS EPLER, Judge, presiding.

Mr. W. H. HERNDON, for the plaintiff in error.

Mr. T. W. MCNEELY, for the defendant in error. Mr. JUSTICE SHELDON delivered the opinion of the court:

This was an action of ejectment, by Agnes D. Enos, and Zimri A. Enos, her husband, against James N. Buckley, commenced in the circuit court of Menard county, May 28, 1878, to recover possession of the east half of the south-east quarter and the north-west quarter of the south-east quarter of section 32, township 19, range 7 west of the third principal meridian, situated in Menard county in this State, wherein there was judgment for the defendant, and the plaintiffs bring the case here by writ of error.

The title shown on the part of the plaintiffs was that George Trotter was the patentee of the south-east quarter of said section 32 under a patent issued to him by the United States on November 1, 1839; that on or about May 18, 1842, said George Trotter died, leaving a will whereby he devised the lands in controversy, among others, in fee, in equal parts to his four infant children, one of whom was Agnes D. Trotter, now Agnes D. Enos, one of the plaintiffs. The will was duly probated. In 1853, by a decree in a partition proceeding between the aforesaid devisees, the lands in controversy were set off and allotted to the said Agnes D. Trotter, then Agnes D. Enos, in severalty, she having been married to Zimri A. Enos, June 10, 1846.

On the part of the defendant there was shown in evidence a tax deed from the sheriff of Menard county to one A. K. Riggin, dated November 4, 1848, under a tax sale on June 30, 1846, for a quarter section of land, with this simple description merely, to-wit: “South-east quarter of section thirty-two, in township nineteen, range seven, containing one hundred and sixty acres.” A general warranty deed dated June 2, 1865, from Riggin to one Bracken, of the said southeast quarter of section 32, described in the declaration, with a full and proper description of it, together with other lands, for the stated consideration of $4725. A general warranty deed, dated February 16, 1869, from Bracken to James Buckley, of the lands in controversy, properly described, together with other lands, the consideration stated being $7500. Also, a general warranty deed dated April 9, 1878, from Buckley, the defendant, to J. N. Rutledge, of the lands in controversy, properly described, with other lands, for the stated consideration of $5000, Buckley to keep possession of the land until March 1, 1879, by reservation in the deed.

It was further shown that Riggin paid all taxes assessed on the land in controversy for the years from 1846 to 1864, both inclusive; that Bracken paid all the taxes so assessed for the years 1865, 1866, 1867 and 1868; that Buckley, the defendant, paid all the taxes so assessed for the years from 1869 to 1877, both inclusive, and that Rutledge paid such taxes for the year 1878.

It was further shown that the land in controversy was vacant and unoccupied until in the year 1858 or 1859, further than that it was fenced in, in 1856, as we understand, by adjoining owners fencing their own lands, and the pasturage of it was enjoyed.

In 1858 or 1859 Riggin moved a house on the land, broke up the land in 1859 or 1860, and had a tenant in the house and upon the land from 1860 or 1861 to 1865, ever since which time the land has been in cultivation and in the actual possession respectively of the grantees in the several deeds mentioned.

It is objected to the tax deed offered in evidence that it is void for any purpose on account of the uncertainty of what quarter section it is which the deed purports to convey, it being merely described as E. 1/2 of S.E. 1/4 of section 32, in township 19, range 7, the deed not stating on what side of any base line or meridian is the township or range, or in what State or county the land is situate. Without stopping to consider as to this, we are of opinion that, laying aside this tax deed, a good defence is made out by the payment of taxes on the land by the defendant and those under whom he claims for seven successive years while in actual possession of the land under claim and color of title made in good faith.

There can be no doubt, under our decisions, that at least the deed from Riggin to Bracken was color of title, as also that from Bracken to the defendant, and that the claim of title thereunder was made in good faith, and there was payment by the defendant under his deed, and while in the actual possession of the land, of all taxes assessed against it for seven successive years. Our statute, in force since 1839, provides that “every person in the actual possession of lands or tenements under claim and color of title made in good faith, and who shall for seven successive years continue in such possession, and shall also, during said time pay, all taxes legally assessed on such lands or tenements, shall be held and adjudged to be the...