Mclaughlin v. Thompson

• Court: Illinois Supreme Court
• Writing for the Court: WALKER
• Citation: Mclaughlin v. Thompson, 55 Ill. 249, 1870 WL 6411 (Ill. 1870)
• Decision Date: 30 September 1870
• Parties: WILLIAM MCLAUGHLINv.LEWIS W. THOMPSON.

55 Ill. 249

1870 WL 6411 (Ill.)

WILLIAM MCLAUGHLIN

v.LEWIS W. THOMPSON.

Supreme Court of Illinois.

September Term, 1870.

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

The opinion states the case.

Messrs. GOUDY & CHANDLER and Mr. I. N. BASSETT, for the appellant.

Mr. T. G. FROST, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action of ejectment, brought by appellee in the Mercer circuit court, against appellant, for the recovery of a number of lots in the town of Aledo, in Mercer county. A plea of not guilty was filed, a trial was had, resulting in a verdict and judgment in favor of plaintiff, and defendant brings the record to this court and assigns and urges various errors for a reversal.

We shall confine ourselves in the decision of this case to the instruction given by the court of its own motion, and the questions it raises on the record. It is this:

“The jury are instructed that the plaintiff has shown a good tax title, and that the defendant has shown a good patent title, and the questions of fact presented for further consideration, are:

First, has the record been forged; and second, has the defendant, and those claiming through him, shown an actual residence on the land for seven years under the patent title in evidence. If the record has been forged, the plaintiff cannot recover, and if the defendant, and those claiming through him, have resided on the land for seven years immediately preceding the commencement of this suit, the plaintiff cannot recover; but unless these facts are shown, the plaintiff ought to recover.”

If it is not true that appellee had shown a good tax title, then the first clause of this instruction is erroneous, and the judgment should be reversed. The court, in this instruction, informs the jury that appellee had proved a good tax title, and to overcome it and defeat a recovery, appellant must prove that the record upon which it was based, was a forgery, and that he and those claiming through him had an actual residence on the land for seven years under the patent title. Now, if it appeared that the record upon which the tax deed was based, was a forgery, then it would not be a good tax title, and he could not recover, whether appellant had been in the actual occupancy of the land by residence or not, as that would be wholly immaterial. If there was such possession, then it would bring appellant within the provisions of the limitation law of 1835, and such possession...