Holbrook v. Debo

• Decision Date: 20 June 1881
• Citation: 1881 WL 10554,99 Ill. 372
• Parties: EDMUND S. HOLBROOKv.JACOB DEBO.
• Court: Illinois Supreme Court

99 Ill. 372

1881 WL 10554 (Ill.)

EDMUND S. HOLBROOK

v.JACOB DEBO.

Supreme Court of Illinois.

Filed at Ottawa Jun. 20, 1881.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of LaSalle county; the Hon. JOSIAH MCROBERTS, Judge, presiding.

This was an action of ejectment, brought by Edmund S. Holbrook against Jacob Debo, in the LaSalle circuit court, for lots 3, 4 and 5, of block 65, of that part of the city of Peru known as “the town of Ninawa,” or “the Ninawa addition to Peru.” A trial was had at the June term, 1878, before the court, without a jury, resulting in a finding and judgment for the defendant.

On the trial the plaintiff, to show title, introduced the following evidence:

1. A patent to Thomas Glenn of the west half of the south-east quarter of sec. 17, town 33 north, range 1 east of the third principal meridian, dated August 1, 1838, and recorded July 27, 1840, in La Salle county records of deeds.

2. A deed by said Glenn to Theron D. Brewster of the same land, dated April 3, 1839, recorded June 22, 1839.

3. A deed by said Brewster to the plaintiff of these lots (and other lots), dated September 24, 1858, acknowledged and recorded.

4. And proof that these lots were a part of said tract of land.

The defendant relied upon two defences: 1st, limitation of seven years, and payment of taxes, before suit brought; and 2d, an outstanding title as against the plaintiff. Under the first he introduced the following evidence:

1. The record of a sheriff's deed for lot 3 (not the others), to Alonzo Edwards, for the non-payment of taxes of 1844--reciting a judgment in 1845-- dated February 24, 1848, recorded soon after in book 17, p. 161. Then a deed of said Edwards to Richard Ellis, dated April 16, 1867, and a deed by said Ellis to defendant, dated July 8, 1869.

2. A record of a sheriff's deed of lots 4 and 5 (but not 3) to Morris Neustadt, for the non-payment of taxes of 1864--reciting a judgment in 1865-- dated September 14, 1867. Then a deed by said Neustadt to defendant, dated June 22, 1869.

3. And proved the taking possession of these lots, then vacant, May, 1869; built on them in 1871, and so continued to occupy till now, and the payment of all taxes during the same time, the first tax, 1869, city and county combined, being paid April 1, 1870.

To sustain the second ground of defence the defendant introduced the following evidence:

1. A record of a deed by Theron D. Brewster to Ward B. Burnett of these lots and other lots, dated March 8, 1837, recorded soon after, book “G,” p. 280.

2. A like record of a deed by Henry L. Kinney to same party; same property, same date and record.

3. A record of a trust deed by said Holbrook to John H. Ball, as trustee, for lots 4 and 5 (not lot 3), dated October 23, 1861, recorded book 81, p. 607, to secure the payment of a debt in one year's time, with the usual power of sale.

Mr. EDMUND S. HOLBROOK, for the appellant:

The defence, under the Limitation law, is lacking in one essential quality. The first payment of taxes, April 1, 1870, was not seven years before suit, which was March 23, 1877. Clark v. Lyons, 45 Ill. 388; McConnel v. Konepel, 46 Id. 519.

As to the second defence, outstanding title in another, I reply:

As preliminary, it should be noticed that this defence is one not favored in the law, and the rule of strict construction will obtain. Den v. Sinnickson, 4 Hal. (N. J.) 149; Peck v. Carmichael, 9 Yerger, 325.

At law one may have the benefit of the extinction of a title, though he had no equity in its extinction, and when the defendant sets up an outstanding title, the plaintiff may show that it has become extinguished. Whiting v. Butler, 29 Mich. 124; Dickinson, Lessee v. Collins, 1 Swan, 516; Lessee Foster v. Joice, 3 Wash. C. C. R. 498. As a general rule, no distinction has in any way been taken between a covenant of non-claim and the ordinary covenant of warranty. Both are in general held to have the same operation by way of estoppel, and both equally possess the capacity of running with the land, and confer the same rights as to a recovery in damages. Kimball v. Blaisdell, 5 N. H. 533; Evarts v. Brown, 1 D. Chipman, (Vt.) 99; True v. Eastman, 3 Metc. 121; Gibbs v. Thayer, 6 Cush. 33; Miller v. Ewing, Id. 40; Claunch v. Allen, 12 Ala. 163; Newcomb v. Presby, 8 Metc. 406; Phelps v. Kellogg, 15 Ill. 131; Bennett v. Waller, 23 Id. 97; Porter v. Sullivan, 7 Gray, 441; Lathrop v. Snell, 11 Cush. 453.

The covenants will lose that attributed estoppel (inurement) when it appears that the grantor intended to convey no greater estate than he was possessed of. Blanchard v. Brooks, 12 Pick. 66; Gee v. Moore, 14 Cal. 474.

The warranty in a deed applies only to the estate the deed purports to convey, whatever it may be. Bell v. Twilight, 6 Foster, (N. H.) 411; Allen v. Holton, 20 Pick. 464; Ballard v. Child, 46 Me. 152; White v. Brocau, 14 Ohio St. 339; Hurd v. Cushing, 7 Pick. 175; Kimball v. Semple, 25 Cal. 441; Comstock v. Smith, 13 Pick. 116; Hoxie v. Finney, 16 Gray, 332; Bates v. Foster, 59 Me. 157; Brown v. Jackson, 3 Wh. 452; Adams et al. v. Ross, 1 Vroom, (N. J.) 504; Sumner, Admr. v. Williams, 8 Mass. 173.

He who would set up an outstanding title in a third person, must show that it is still a living, effective title, and not barred by the Statute of Limitations, or in any other way ineffectual and void. Hall v. Gittings, 2 Har. & J. 122; Jackson v. Harder, 4 J. R. 211; Jackson v. Todd, 6 J. R. 258; Lessee Foster v. Joice, 3 Wash. C. C. 498; Jackson v. Scharler, 7 Cow. 187; Den Demise Penton v. Sinnickson, 4 Hals. (N. J.) 149; Greenleaf Lessee v. Birth, 6 Pet. 302; Peck v. Carmichael, 9 Yerger, 325; Hunter v. Cochran, 2 Barr, 105; Dickinson's Lessee v. Collins, 1 Swan, (Tenn.) 516; McDonald v. Schneider, 27 Mo. 405; Harvey v. Morton et al. 36 Mi. (7 Geo.) 411; Griffin v. Sheffield, 38 Id. (9 Geo.) 359; Hoag v. Hoag, 35 N. Y. 473; Lannan Lessee v. Wilson, 30 Md. 537; Wade v. Thompson, 52 Mi. 367; Totten v. James, 55 Mo. 494; Whiting v. Butler, 29 Mich. 124.

Messrs. G. S. ELDRIDGE, and Mr. H. M. GALLAGHER, for the appellee:

This court can not judicially say that Burnett or his heirs are barred by the Statute of Limitations.

It is said the deed from Brewster to Burnett does not purport to convey title, but is a naked release only. When the granting clause is considered with the habendum, it is evident that the deed conveys a fee simple estate. 4 Kent's Com. 5, 6; 2 Blacks. Com. 104, 105.

The clause in the deed from Brewster to Burnett was nothing less than an express covenant, operating prospectively against the grantor and all claiming under him, which run with the land, and was binding upon the plaintiff, as Brewster's grantee, and an effectual estoppel upon the assertion of any claim by him to the premises conveyed. Brady v. Spurck, 27 Ill. 478; Claycomb v. Munger 51 Id. 373; Bennett v. Waller, 23 Id. 97; Wadhams v. Gay, 73 Id. 415; Welch v. Dutton, 79 Id. 465; Chicago, Burlington and Quincy Railroad Co. v. Chamberlain, 84 Id. 333.

If a grantor conveys by quitclaim, and the estate which he assumed to have was less than a fee, or for some reason becomes extinguished, or he has acquired an entirely new title to the property, it has been held that he may set it up notwithstanding his former quitclaim; but unless it appears that his title, subsequently set up, is in no way connected with the title he assumed to convey, he is estopped, even though he made no covenants. Jackson v. Murry, 12 Johns. 201; Jackson v. Ball, 1 Johns. Cas. 90; Comstock v. Smith, 13 Pick. 116; Bell v. Twilight, 6 Foster, 401; Coke's Litt. 45, 47; Cro. Cas. 110. It is true, as stated by the appellant, that seven years' possession had not intervened between the first payment of taxes and the commencement of this suit, but the first payment was made in April, 1870, and the last payment, June 17, 1878, after the commencement of suit, the defendant remaining in possession all the time, making eight years' possession and payment of taxes for nine years consecutively suffered to be made by the plaintiff. It is true, suit has been brought, but if the construction of the 8th section of the Limitation act is that the statute only begins to run from the time of the first payment of taxes, when the letter of the statute is, that “every person in the actual possession * * * who shall, for seven successive years, continue in possession, and shall also, during said time, pay all taxes legally assessed,” etc., does not the same strictness of construction of this statute apply against the plaintiff, when he still suffers the payment of taxes by the party in possession to continue after suit brought, so that upon the completion of the payments and possession concurrently, the person in possession should be “held and adjudged to be the legal owner of said lands,” etc.?

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was an action of ejectment, brought March 23, 1877, by Edmund S. Holbrook against Jacob Debo, to recover lots 3, 4 and 5, of block 65, in the Ninawa addition to Peru. There was judgment for the defendant in the circuit court, and the plaintiff appealed.

The tract of land (west half of the south-east quarter of section 17, township 33, range 1 east,) embracing the lots in controversy, was bought from the government by one Thomas Glenn, to whom a patent issued August 1, 1838. On April 3, 1839, Thomas Glenn conveyed the tract of land to Theron D. Brewster, who afterward, on September 24, 1858, conveyed the lots in controversy to Holbrook, the plaintiff. The defendant, in the circuit court, relied for a defence upon the Statute of Limitations of seven years' payment of taxes, with color of title and possession, and also upon an outstanding title in another.

The first payment of taxes having been made on April 1, 1870, and the suit brought March 23, 1877, there had not been the intervention of full seven years between the time of the first payment of taxes and the commencement of the...