Hale v. Gladfelder

• Decision Date: 30 September 1869
• Citation: 1869 WL 5393,52 Ill. 91
• Parties: T. JUDSON HALEv.LEVI GLADFELDER et al.
• Court: Illinois Supreme Court

52 Ill. 91

1869 WL 5393 (Ill.)

T. JUDSON HALE

v.LEVI GLADFELDER et al.

Supreme Court of Illinois.

September Term, 1869.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Knox county; the Hon. ARTHUR A. SMITH, Judge, presiding.

The opinion states the case.

Mr. L. DOUGLAS, for the appellant.

Messrs. FROST & TUNNICLIFF, Mr. P. H. SANFORD and Mr. M. SHALLENBERGE, for the appellees.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action of ejectment, brought by appellant in the Knox circuit court, against appellees, to recover the southeast quarter of section fourteen, in township twelve north, of range four east. A trial was had before the court and a jury, where the issues were found for the defendants. On the trial below, appellant produced evidence of claim and color of title in the name of James Stewart, and payment of taxes by him from the year 1838 to 1853 inclusive, and that the land was vacant and unoccupied during that time. He also read in evidence a deed from Stewart to himself for the land, dated the 17th day of January, 1856. It was agreed by the parties that appellant sold the premises to one David Swickard, by a written agreement, and that he took possession of the land and commenced its improvement in the fall of 1857, and remained in possession until the fall of 1858. That he enclosed it with a fence; that he then abandoned the contract and removed the improvements without the knowledge or consent of appellant; that prior to the fall of 1857 the quarter had always been vacant and unimproved; that after Swickard left the place it remained vacant until appellee took possession.

Appellant urges a reversal upon the grounds that he showed a right to recover under the claim and color of title, with payment of taxes for the required period, united with his possession by Swickard, and that the court erred in the instructions given and in overruling a motion for a new trial; that he brought himself within the second section of the limitation act of 1839 and should have had a judgment in his favor.

The second section of that act declares, “That whenever a person having claim and color of title, made in good faith, to vacant and unoccupied land, shall pay all taxes legally assessed thereon for seven successive years, he or she shall be deemed and adjudged to be the legal owner of said vacant and unoccupied land, to the extent and according to the purport of his or her paper title. All persons holding under such tax payer, by purchase, devise or descent, before the said seven years shall have expired, and who shall continue to pay the taxes as aforesaid, so as to complete the payment of taxes for the time aforesaid, shall be entitled to the benefit of this section.”

Under this provision of the law, it is perfectly obvious that Stewart had fully entitled himself to its benefits, unless he acted in bad faith. He held claim and color of title, and paid all taxes legally assessed, for fifteen years, more than double the statutory period. The land was vacant and unoccupied during that period. Under the decisions of this court he had only to reduce the property to possession to render his color of title and payment of taxes availing. Had he entered into possession and been sued for the land, it is apparent that he could have invoked the statute as a complete bar to a recovery, unless he held the color in bad faith. This being his right, any person having purchased of him his claim and color of title succeeded to his rights under the statute. Appellant, then, having acquired a conveyance from him, succeeded to all of his rights.

After this purchase, appellant, through Swickard, with whom he had contracted to sell the land, acquired the possession and held it for one year. And Swickard having entered and held under and in subordination to appellant's title, had he been sued before he abandoned the premises, could have invoked the aid of the statute with effect. The bar of the statute was then complete, and had vested in appellant by reason of his possession by his vendee.

In the case of Hinchman v. Whetstone, 23 Ill. 185, it was held, where a party had been in possession under the first section of this act, so as to obtain the bar of the statute, and permitted the improvements to decay, or be removed, and the premises to become vacant, and the owner of the adverse title, which had been barred, regained possession, the person who acquired the bar by his possession under claim and color of title, and the payment of taxes, may recover, unless the owner of the adverse title has in like manner held possession, and paid taxes until he has acquired the bar of the statute. In that case there was an extensive review of the authorities, and it was held that whilst the statute did not confer the absolute title, still it did confer a right to hold and enjoy the possession precisely as if he was invested with the title, and that if his possession was invaded, or the premises become vacant, and another should make entry, even if he held the paramount title, he might sue and recover upon his former possession. In that case it was said that when the bar becomes complete, the former owner...