Lewis v. William J. Ward.

• Decision Date: 21 June 1881
• Citation: 99 Ill. 525,1881 WL 10577
• Parties: HENRY LEWISv.WILLIAM J. WARD.
• Court: Illinois Supreme Court

99 Ill. 525

1881 WL 10577 (Ill.)

HENRY LEWIS

v.WILLIAM J. WARD.

Supreme Court of Illinois.

Filed at Mt. Vernon Jun. 21, 1881.

APPEAL from the Circuit Court of Massac county; the Hon. DAVID J. BAKER, Judge, presiding.

Mr. J. F. MCCARTNEY, for the appellant.

Messrs. LINEGAR & LANSDEN, for the appellee.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

This is an action of ejectment, and was brought by William J. Ward against E. B. Cropper, Charles Cropper and James W. House. Service was only had on two of defendants, and afterwards the suit was dismissed as to Charles Cropper. Defendants upon whom service was had failing to appear and plead, judgment was rendered against them by default, and a writ of possession awarded. Subsequently, Henry Lewis, upon filing an affidavit that he was the real party in interest, and that defendants named were his tenants, was substituted defendant instead of the original parties, and after paying the costs of the suit to that date was awarded a new trial, under the statute. On the second trial, the court found plaintiff was the owner in fee of the lot of ground described in the declaration, and defendant was guilty of withholding the possession, and from the judgment pronounced defendant brings the case to this court on appeal.

It is conceded a prima facie case was made that would authorize a recovery, by proof that Beeson was in possession of the property, under claim of ownership, and of a conveyance by him to plaintiff. But that, it is insisted, was defeated by showing a better title in defendant,--that is, the title it is conceded plaintiff had, was divested by a tax title acquired under the laws of this State. The defence rests solely on the validity of the tax title under which defendant claims to be the owner in fee of the property.

It appears, from the evidence, plaintiff was the owner of the north half of lot 316, block 28, all of which seems to have been assessed to him, and upon which back taxes for the years 1872 to 1874, both years inclusive, remained unpaid. Judgment was rendered against the whole tract of land for the delinquent taxes for the years mentioned, as well as for the taxes of 1875, amounting in the aggregate to $88.40.

Before the judgment for taxes was obtained, Woodward became the owner of fifty feet off the north side of the north half of lot 316, under a sheriff's sale of the property of plaintiff, leaving twenty-five feet, the property now in controversy, remaining in plaintiff. There is some evidence tending to show that Woodward was furnished by his grantor with money with which to pay the tax on the entire property, but whether he was or not, he did not pay the taxes, and at the tax sale he purchased the whole of the north half of lot 316, which, of course, included his own as well as plaintiff's part of the lot. At the tax sale Woodward received the usual certificate of purchase, which he afterwards assigned to Joseph R. Pitts. Upon an affidavit showing a compliance with the statute being filed in the proper office, the county clerk made Pitts a tax deed for the whole property. It also appears Woodward conveyed to Pitts the same land sold on execution to McMahan, and which McMahan had previously...