Kane v. Footh

• Decision Date: 30 September 1873
• Citation: 1873 WL 8647,70 Ill. 587
• Parties: THOMAS KANEv.SIMON FOOTH.
• Court: Illinois Supreme Court

70 Ill. 587

1873 WL 8647 (Ill.)

THOMAS KANE

v.SIMON FOOTH.

Supreme Court of Illinois.

September Term, 1873.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Kane county; the Hon. SILVANUS WILCOX, Judge, presiding.

Mr. JAMES O. MCCLELLAN, for the appellant.

Messrs. BOTSFORD, BARRY & LOVELL, for the appellee.

Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court:

This was an action of ejectment, in the Kane Circuit Court, wherein Thomas Kane was plaintiff and Simon Footh defendant, to recover the possession of the east half of the north-west quarter of section nine, in township forty north, in range six east, of the third principal meridian. The cause was tried by a jury, and verdict for the defendant, on which the court, after overruling a motion for a new trial, rendered judgment against the plaintiff for the costs. To reverse this judgment the plaintiff appeals.

On the trial, the plaintiff deraigned his title from a patent from the United States to one Patrick Sheridan, dated June 1, 1850, and no exception was taken thereto.

The defendant claimed under a tax deed from the sheriff of Kane county to one James Ferson, dated January 12, 1865, on a sale for taxes made in 1859, and a deed from Ferson to himself, dated September 22, 1866. Defendant also exhibited a receipt for taxes paid by himself, dated February 13, 1865, and the following years to 1871, inclusive. Defendant proved that, after the purchase by Ferson, he rented the land to one Lorenzo Ward, who used the same as a pasture lot for several years; that the land was inclosed by a fence, not in good repair, and ever since his purchase it had been in his actual possession.

The only question raised on the record is, does the proof show a concurrence of color of title, payment of taxes under that color, and possession for seven consecutive years, to enable the defendant to defend under the eighth section of the act of 1845, title “Conveyances,” ch. 24. In other words, has the defendant established the bar of the eighth section of this statute?

The sheriff's deed to Ferson, it is conceded, was color of title. That deed bears date January 12, 1865. The first taxes paid thereafter were paid by Ferson, on the thirteenth February, 1865. From this date the statute began to run, and the evidence shows the taxes paid by appellee the succeeding years, to January 19, 1871. This completes the seven years' payment of taxes.

The remaining inquiry is, was the actual possession by appellee and his grantor for the requisite period.

The land was purchased at a sale for taxes in 1859, and was rented by the purchaser to Lorenzo Ward, who inclosed it with his own land, and used it as a pasture lot for two years. In January, 1865, when the sheriff's deed was made to Ferson, the land was in this condition. This court has often held that it is not necessary, to create the bar of this section, that the person claiming the land should actually reside on the land or cultivate it.

In Truesdale v. Ford, 37 Ill. 210, it was said, that possession of land may be shown in different modes. It may be by inclosure, by cultivation, by the erection of buildings or other improvements, or by any visible, open use, clearly indicating its appropriation and actual use by the person claiming to own it. To the same effect are Blanchard v. Pratt, ib. 243, and Paullin v. Hale, 40 ib. 274. These are questions for the jury, and as they have found an actual possession in Ferson, the grantor of appellee, and in appellee, for the requisite period, and, as we think, properly, we can not disturb the verdict. The bar of the eighth section was complete.

The refusal to give this instruction is assigned as error:

“The court instructs the jury to render a special--that is, to state in the verdict from what date the land in controversy has been in the exclusive and actual possession of the defendant...