Glos v. Wheeler

• Decision Date: 23 October 1907
• Citation: 82 N.E. 234,229 Ill. 272
• Parties: GLOS v. WHEELER.
• Court: Illinois Supreme Court

229 Ill. 272

82 N.E. 234

GLOS

v.WHEELER.

Supreme Court of Illinois.

Oct. 23, 1907.

Error to Circuit Court, Cook County; C. G. Neeley, Judge.

Application by Samuel H. Wheeler to register title to certain lands. Jacob Glos answered. From the judgment, said Glos brings error. Reversed.

Jacob Glos (John R. O'Connor, of counsel), for plaintiff in error.

Charles R. Napier, for defendant in error.

VICKERS, J.

Samuel H. Wheeler, defendant in error, filed his application on May 3, 1902, to register title to certain lands in Cook county under the act concerning land titles. The property is described as lot 35 in subblock 2 in the subdivision of blocks 7 to 11 in Seymour Estate subdivision of the W. 1/2 of the N. W. 1/4 of section 2, town 39, N., range 13 E. of the third principal meridian, in Cook county, Ill. The application alleges that defendant in error is the owner of the fee simple of the premises, that the land is occupied by Catherine C. Sullivan and her husband under a contract of sale from defendant in error, and that no other person is interested in the premises except Jacob Glos, plaintiff in error herein, who holds a tax deed on the premises. Plaintiff in error answered, denying that defendant in error was the owner or that he was entitled to the relief prayed for, and alleged that he was the owner of the property by virtue of his tax deed. The case was referred to the examiner of titles, with instructions to take the evidence and report the substance thereof, together with his conclusions on the question of title. Before any evidence was taken plaintiff in error requested the examiner of titles to return with his report all of the evidence upon which the said report would be based. The examiner took the evidence and reported that defendant in error was owner of the premises described in the application, and that plaintiff in error held a tax deed, which should be set aside upon the payment to him of the sum of $49.55 within 30 days, and that defendant in error's title was entitled to registration. Objections were filed before the examiner, which were overruled, and a decree was entered in accordance with the report; the objections standing before the court as objections to the decree and being also overruled. The case is before this court upon a writ of error.

To entitle the defendant in error to registration of title, he must show title in himself good against all the world. Prima facie title is not sufficient in a proceeding of this kind. Glos v. Kingman & Co., 207 Ill. 26, 69 N. E. 632;Glos v. Cessna, 207 Ill. 69, 69 N. E. 634;Glos v. Talcott, 213 Ill. 81, 72 N. E. 707;Glos v. Holberg, 220 Ill. 167, 77 N. E. 80. In order to show such title in himself, defendant in error relied upon color of title, payment of taxes, and possession, and also upon a chain of title from the United States government. To establish title by limitation under section 1 of the law of 1839 (Laws 1839, p. 266; Starr & C. Ann. St. 1896, c. 83, § 6), three things are necessary: First, color of title obtained in good faith; second, payment of taxes for the full period of seven years by the holder of such color of title or by some one acting for him; third, continuous and uninterrupted possession for the full period of seven years. These three conditions must exist concurrently, without interruption, and must continue throughout the same seven years. Clark v. Lyon, 45 Ill. 388;Timmons v. Kidwell, 149 Ill. 507, 36 N. E. 974;Taylor v. Lawrence, 148 Ill. 388, 36 N. E. 74;Wright v. Stice, 173 Ill. 571, 51 N. E. 71.

Defendant in error offered in evidence a quitclaim deed from Thomas Divens and wife, dated September 3, 1892, which showed color of title. The evidence is insufficient, however, as to possession for the full period of seven years. In response to the question, ‘In what way did Wheeler take possession of this lot?’ William G. Benson, a witness testifying on behalf of defendant in error, said: ‘He took possession, he recorded the deed, and he make entries on the books showing what property he owned in the neighborhood of this property, and one thing and another.’ This is not such open and visible possession as the law requires to establish possession under color of title. Hubbard v. Kiddo, 87 Ill. 578;Travers v. McElvain, 181 Ill. 382, 55 N. E. 135;Stalford v. Goldring, 197 Ill. 156, 64 N. E. 395. It appears that defendant in error built a house on this lot, but the evidence fails to disclose when he did so. Mrs. Catherine Sullivan, who occupied the property under contract to purchase from defendant in error, testifying in his behalf, stated that she had lived there five years. It does not appear that any one else occupied the property prior to her occupancy. Neither does it appear that the defendant in error paid the taxes for the period of seven years. The property was sold for taxes in ...