Iberg v. Webb

• Decision Date: 14 June 1880
• Citation: 1880 WL 10124,96 Ill. 415
• Parties: AUGUST IBERG et al.v.CHARLOTTE R. WEBB et al.
• Court: Illinois Supreme Court

96 Ill. 415

1880 WL 10124 (Ill.)

AUGUST IBERG et al.

v.CHARLOTTE R. WEBB et al.

Supreme Court of Illinois.

Filed at Mt. Vernon Jun. 14, 1880.

WRIT OF ERROR to the Appellate Court for the Fourth District; the Hon. T. B. TANNER, presiding Justice, and Hon. J. C. ALLEN, and Hon. GEORGE W. WALL, Justices;--heard in that court on appeal from the Circuit Court of Madison county.

Messrs. METCALF & BRADSHAW, for the plaintiffs in error.

Messrs. GILLESPIE & HAPPY, for the defendants in error.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was a bill for partition, filed October 14, 1871, by certain of the heirs of Henry Hudson, deceased, against the other heirs of said Hudson, praying for partition among them as the owners and tenants in common of the lands in question.

The bill also made Albert Guenther and August Iberg defendants, alleging that they claimed to have an interest in the lands, based upon a tax title claimed on the premises, but that the claim was without foundation.

The circuit court decreed partition, as prayed for among the heirs of Hudson, and that Guenther and Iberg had no lawful interest in the premises.

On appeal by Guenther and Iberg to the Appellate Court for the Fourth District, the decree was affirmed, and they bring the case by writ of error to this court.

The claim of Guenther and Iberg, which is set up by them, is under a tax title alleged to have been acquired by one William T. Brown, under a sale of the lands to him for taxes, and by virtue of seven years' alleged possession and payment of taxes under claim and color of title.

There appear in evidence a deed of the premises from William T. Brown to John Reynolds, dated July 1, 1864, and a deed from Reynolds to Albert Guenther, dated August 31, 1864, but nothing showing any title in Brown. Iberg is the purchaser of a part from Guenther afterwards. Title to the lands was shown in Henry Hudson, by purchase from the United States, and the heirship of the parties, as alleged in the bill, was proved. The lands were vacant and unoccupied at the time Guenther purchased. In September, 1864, he commenced working on the lands, and in April, 1865, moved on them, and ever since he and Iberg have been in possession.

In inquiring whether there has been here seven years' payment of taxes with color of title and possession under the 6th section of the Limitation act, we can not take into account any taxes previously paid on the land while it was vacant, as that would be under the 7th section of the act, which makes seven years' payment of taxes with color of title to vacant and unoccupied land a bar to an action. We have held that to constitute a bar, a party must show a complete performance under either the 6th or 7th section. He can not show part performance under one section and part under the other, and thus blend the provisions of both sections. Dickenson v. Breeden, 30 Ill. 280; Ross v. Coat, 58 Id. 54.

Allowing that Guenther took possession as early as in the last of September, 1864, when he says he had men splitting rails on the place, we are, then, to see whether there was the payment of taxes for seven years while Guenther was in possession.

We have decided that the payment of taxes for seven years, coupled with color of title and possession, is not sufficient to create the bar; that a period of seven full years must have intervened between the day when the first payment of taxes was made and the day of the commencement of suit.

As this suit was commenced October 14, 1871, in order to establish the bar claimed of seven years' payment of taxes after possession, it is necessary to prove that the first payment of taxes after Guenther's possession was as early as October 14, 1864, so as to make a period of full seven years between the day when the first payment of taxes, after possession, was made, and the day of the commencement of the suit.

This proof was not made. Guenther gave in evidence tax receipts for taxes paid by him for the years 1865 to 1874, both inclusive. There was no tax receipt for the taxes for 1864, and no positive evidence of the payment of the taxes for that year. All the proof upon the subject was the production of the collector's book for the taxes of the year 1864 and the testimony of the assistant county clerk that this was the collector's book for the taxes of the year 1864, which were collected in 1865; that the lands in controversy were listed to William T. Brown, and in the column headed “Remarks, by whom paid,” opposite each of the tracts, he found the initials “W. T. B.,” indicating, in his judgment, that William T. Brown paid...