Peabody v. Burri

• Court: Illinois Supreme Court
• Writing for the Court: CARTER
• Citation: Peabody v. Burri, 255 Ill. 592, 99 N.E. 690 (Ill. 1912)
• Decision Date: 26 October 1912
• Parties: PEABODY v. BURRI et al.

255 Ill. 592

99 N.E. 690

PEABODY

v.BURRI et al.

Supreme Court of Illinois.

Oct. 26, 1912.

Appeal from Circuit Court, Montgomery County; Thomas M. Jett, Judge.

Action by Anna L. Peabody against Katharine Burri and others to quiet title in the former. Decree for plaintiff, and defendants appeal. Reversed and remanded.Hill & Bullington, of Hillsboro, Thomas Williamson, of Edwardsville, and M. J. McMurray, of Hillsboro, for appellants.

Edward A. Cress, of Hillsboro, for appellee.

CARTER, J.

This is an appeal from a decree of the circuit court of Montgomery county quieting title in appellee, Anna L. Peabody, to a certain quarter section of land in that county. From the record it appears that the land in question was entered by or in the name of Ezra Peabody on June 23, 1851, as bounty land for his services in the Florida war; a patent being issued to him November 1, 1851. He died at Salem, Mass., July 5, 1854, intestate and unmarried, leaving as his only heirs at law his mother, Christiana Peabody, his brother, Brackley R. Peabody, his two sisters, Pamelia Arrington and Christiana Goldthwait, and certain nephews and nieces, children of a deceased sister, Mary Ann Arrington. Appellee, Anna L. Peabody, is the wife of George L. Peabody, the only child of Brackley R. Peabody. The appellants, except Katharine Burri, are descendants of the three sisters of Ezra Peabody. On the records of Montgomery county appears a decree conveying a part of said premises from Joseph Burri to Katharine Burri, dated in 1888. All parties herein concede that the description in this deed was a clerical error, neither the grantor nor grantee having or claiming any interest in this land, and the decree rightly removed said deed as a cloud on the title. Upon the death of Ezra Peabody his brother, Brackley R. Peabody, was appointed as administrator by the probate court of Essex county, Mass., on the petition of the mother, Christiana Peabody, and his sister, Christiana Goldthwait. The original inventory filed in that state had written under the schedule ‘Real Estate’ the item, ‘Land warrant for 160 acres in state of Illinois, appraised at $160.’ These words were erased by a line drawn through them, and an entry reading substantially the same was made under the schedule ‘Personal Property.’ The records of the probate court of that county do not show any other property as assets of said estate. No further steps appear to have been taken in said estate. The title of Ezra Peabody to this quarter section descended, at his death, two-sixths to his mother, one-sixth each to the brother and two sisters, and one-sixth to the children of a deceased sister. The mother, Christiana Peabody, died testate at Salem in October, 1857. Her will left her interest in said land to her son, Brackley R. Peabody, describing it as ‘all my right to the one-fifth part (or whatever part it may be at my decease) in and to a 160-acre lot of land located in Montgomery county, state of Illinois, and which was owned by virtue of land warrant No. 3,188 to my late son, Ezra Peabody.’ This will was not probated until after the death of Brackley R. Peabody in 1874. In 1872 the land here in question was sold for taxes and bought in by George L. Peabody, husband of appellee. In February, 1874, Brackley R. Peabody died suddenly, intestate, leaving a widow, Lucinda D. Peabody, and leaving as his only heir his son, George L. Peabody. A few days thereafter the son, George L. Peabody, assigned the tax certificate to his mother. A tax deed, based upon this tax certificate, was issued by the county clerk of Montgomery county to the mother, Lucinda D. Peabody, in November, 1874. In June, 1885, Lucinda D. Peabody died testate, devising by her will to Anna L. Peabody, wife of George L. Peabody, ‘all the real and personal estate of which I shall died seised or possessed.’

From the evidence it appears that Brackley R. Peabody controlled this property from 1854 until his death in 1874; that George L. Peabody looked after the property for his father from 1872, through agents in Montgomery county, Ill., until his father's death; and that thereafter, until his mother's death, he looked after it in the same way for his mother, and after her death for his wife down to the present time. The record does not disclose when they first began to rent the land; but it appears they received more than enough in rents each year from 1872 to the present time to pay all taxes and expenses connected with the land for such year. There are no houses or improvements upon the farm at the present time, and never have been during these years, except a small house built upon the premises years ago and occupied for a short time by a tenant. George L. Peabody testified that, while the land was entered from the government in the name of Ezra Peabody, the expense of the entry and the actual trip to the land office was paid for him by Brackley R. Peabody; that Ezra was practically without means and died in debt to his brother, and the latter always claimed that the land rightfully belonged to him (Brackley); and that Ezra only held the title as a matter of convenience. The witness further testified that the land was permitted to be sold for taxes in 1872 on the advice of attorneys in Illinois, for the purpose of clearing the title in favor of Brackley R. Peabody. The testimony also shows that this witness transferred the certificate of the tax sale to his mother, and that the latter willed this property to the appellee, Anna L. Peabody, because the witness feared that he might be in temporary financial difficulty and wished to protect himself and his wife against creditors. George L. Peabody during most of his active years was engaged in the hotel business in various of the Eastern and Middle States.

The principal question involved in this litigation is whether appellee is the owner of the entire quarter section, or whether she is only the owner of an undivided one-half interest, and appellants (except Katharine Burri), in various shares, the owners of undivided interests aggregating the other one-half. The title of appellee to an undivided one-half interest is not questioned. Counsel for appellee contends that appellee is vested, as against appellants, with the other undivided one-half interest for any one of the following reasons: (1) Laches of appellants; (2) 20 years' adverse possession; and (3) payment of taxes for 7 years under color of title-such color of title consisting of the tax deed and the will of Lucinda D. Peabody. We shall take up and discuss these questions in reverse order.

[1] Appellee claims that she is the legal owner of the land in question under the tax deed, together with seven years' successive payment of taxes, under section 6 of the Limitation Act (Hurd's Rev. St. 1911, c. 83); that this tax deed, under that section, is good color of title. Claim and color of title made in good faith under this section has been held to be one that is a prima facie title (Irving v. Brownell, 11 Ill. 402)-a sort of a title that a reasonable man would pay money for; an instrument in writing that purports, on its face, to convey title. Dickenson v. Breeden, 30 Ill. 279. It must be a ‘paper title,’ and cannot exist, in whole or in part, in parol; and such paper title must purport, on its face, to convey or transfer title. Converse v. Calumet River Railway Co., 195 Ill. 204, 62 N. E. 887, and cases cited. A tax deed regular in form, obtained in good faith, is good color of title under this statute. Taylor v. Hamilton, 173 Ill. 392, 50 N. E. 1064;Walker v. Converse, 148 Ill. 622, 36 N. E. 202. Good faith on the part of the holder of color of title will be presumed. Bad faith must be established by proof to defeat the effect of a deed as color of title. Dawson v. Edwards, 189 Ill. 60, 59 N. E. 590;Baldwin v. Ratcliff, 125 Ill. 376, 17 N. E. 794;Davis v. Hall, 92 Ill. 85.

[2][3] No question is raised on this record as to the payment of taxes for seven successive years; but it is insisted that the tax deed was not obtained in good faith. The general rule is that no cotenant will be permitted to assert against another cotenant a title acquired by purchase at a tax sale for taxes imposed on their common property during joint ownership. Freeman on Cotenancy (2d Ed.) § 158. This is the rule in this state. Goralski v. Kostuski, 179 Ill. 177, 53 N. E. 720,70 Am. St. Rep. 98;Burgett v. Taliaferro, 118 Ill. 503, 9 N. E. 334. A tenant in common in possession cannot acquire color of title to property by procuring for his own exclusive benefit an outstanding adverse title. The title so acquired inures to the benefit of all the tenants in common. Carpenter v. Fletcher, 239 Ill. 440, 88 N. E. 162.

[4] The fact that a cotenant allows premises to be sold and afterwards acquires the title, based upon such sale, by purchase is evidence of bad faith on his part. Hanna v. Palmer, 194 Ill. 41, 61 N. E. 1051,56 L. R. A. 93, and cases cited. It is clear under these authorities that Brackley R. Peabody could not have obtained color of title under the tax deed, had he been the purchaser and lived to receive such deed in his name. Must the husband of the appellee, and his mother, the wife of Brackley R. Peabody, be bound by the same rule?

[5] George L. Peabody was the agent of his father, Brackley R. Peabody, at the time of the sale of this land for failure to pay taxes. He himself testified that they permitted the land to be sold so that his father could obtain a good title for all the tract. Where the husband of a coheiress in possession of land purchases an outstanding tax title on the lands of the heirs, he will be held to have purchased for the benefit of all the tenants in common, upon the condition only that they contribute their respective portions of the consideration actually paid by him. Busch v. Huston, 75 Ill. 343.

[6] Where a cotenant enters into negotiations with a third person, whereby such third person agrees...