Perry v. Burton

• Decision Date: 15 November 1888
• Citation: 18 N.E. 653,126 Ill. 599
• Parties: PERRY et al. v. BURTON et al.
• Court: Illinois Supreme Court

126 Ill. 599

18 N.E. 653

PERRY et al.

v.BURTON et al.

Supreme Court of Illinois.

November 15, 1888.

Appeal from superior court, Cook county; HENRY M. SHEPARD, Judge.

Action for partition and to quiet title, begun July 18, 1873, by James S. Perry and John N. Henderson against George W. Burton and others. Plaintiffs appeal from a decree dismissing the bill.Edmund S. Holbrook, (A. D. Eddy, of counsel,) for appellants.

Melville W. Fuller and Granville W. Browning, for appellees.

MAGRUDER, J.

This case has been before this court heretofore, as will be seen by reference to the opinion filed on September 27, 1884, and reported as Perry v. Burton, 111 Ill. 138.² The facts are sufficiently stated there, and it is unnecessary to recapitulate them here. By the terms of the former opinion the cause was reversed and remanded. After the case was docketed in the court below, it was reheard, partly upon testimony introduced at the first hearing, and partly upon new evidence, and a decree was rendered dismissing the bill. From that decree this appeal is prosecuted.

Appellants insist that the trial court should have entered a decree finding Perry and Henderson to be the owners of an undivided one-half of the 40 acres, and should have proceededwith the partition of the property between them and the owners of the other half, upon the alleged ground that the former decision of this court settled the rights of the parties, and was a final adjudication thereof. Inasmuch as the cause was reversed and remanded without directions, we think that the trial court had the power to allow amendments to the pleadings and to permit the introduction of other evidence, in accordance with the views expressed in Chickering v. Failes, 29 Ill. 294, and Cable v. Ellis, 120 Ill. 136, 11 N. E. Rep. 188.

Upon the record as it now stands, we see no escape from the same conclusion which we reached when the case was here before. We then held that the proofs did not clearly show a sale for taxes of the undivided one-half of the land that was owned by Chambers and Benedict. Upon the second trial, appellees supplied the necessary proof upon this subject, and it now appears that the undivided half there belonging to Chambers and Benedict was sold to Cook at the tax sale in November, 1842, and conveyed to him by the tax deed dated December 9, 1844. Cook made a deed of the whole tract of 80 acres to Finnell and Wintersmith in July, 1857. Appellants claim that, between 1844 and 1857, under the tax deed as color of title, Cook paid all the taxes upon the land for seven successive years while it was vacant and unoccupied. To make the bar of the statute complete, it is not sufficient that there be merely color of title. There must also be payment of taxes for seven years. Upon the hearing below, no new evidence was introduced in regard to the payment of taxes by Cook. The only witness upon that subject was Cook himself, nor has he been re-examined. His deposition, taken on August 24, 1882, and which was read upon the first trial, was re-read upon the second trial. Cook's testimony as given in this deposition is the only evidence now in the record as to the payment of taxes prior to 1857, and is the same evidence which we commented upon in our prior opinion. We there held it to be insufficient to show such payment. Our views as then expressed upon its value for such purpose are binding upon us now.

The tax deed of 1844, standing alone, does not vest Cook with the title. It was executed under the act of February 26, 1839, and according to the form there prescribed. Laws Ill. Dec. 1838, p. 17. We have held that a party claiming title under a tax deed executed in accordance with the provisions of that act must show a valid judgment and precept before be can read the sheriff's deed as evidence of title. Hinman v. Pope, 1 Gilman, 131;Atkins v. Hinman, 2 Gilman, 437. No judgment or precept has been shown here.

It is claimed, however, that there were possession and payment of taxes for seven successive years under the deed from Cook to Finnell and Wintersmith, executed July 6, 1857. We have examined the record with great care, and do not find this claim sustained by the evidence. The property was sold in 1857 for the taxes of 1856, and purchased at the tax sale by Frederick R. Wilson. The testimony of Finnell is to the effect that he paid the taxes from 1857 to 1861, inclusive. But a tax deed was issued to Wilson in pursuance of the sale to him, and such tax deed was recorded on August 24, 1859. In June, 1861, Wilson leased the land to one Bradley, who built a house upon the 80 acres near the center of the tract, with the intention of living there five years; but, on account of the low and wet condition of the ground, Bradley moved away in the fall of 1861, taking his house apart, and carrying it off with him. Finnell testifies that he saw this house on the land in September, 1861, and at once entered into negotiations for the purchase of Wilson's tax title, but, owing to the fact of his being in the Union army during the civil war, he did not complete these negotiations with Wilson until after the war. He states that they were pending ‘in a loose sort of way’ until April 26, 1865, on which day a quitclaim deed was executed to him by Wilson. Finnell states that at the time he received this deed from Wilson in April, 1865, there was a house upon the land, occupied by a tenant of Wilson. This tenant at once attorned to Finnell, and afterwards paid him rent. He had been paying Wilson for the grass as his tenant for some time prior to April 26, 1865, but at what time between 1861 and 1865 he went into possession of the land, or at what date the house was built, does not appear. Finnell also states that John Forsythe paid the taxes in 1863 and 1864,-that is, for the years 1862 and 1863,-and that he afterwards settled with Forsythe through one Hunter, and ‘redeemed the land under his [Forsythe's] purchase or forfeiture.’ Counsel for appellees say in their brief: ‘John Forsythe bid in the property for the taxes of 1862, and paid for 1863.’ It thus appears that, if Finnell paid all the taxes from 1857 to 1861, inclusive, he only paid for five successive years. He did not pay the taxes of 1862, but suffered the premises to be sold for the taxes of that year. Nor during the five years in question was the land continuously vacant and unoccupied. Wilson's tenant, Bradley, was in possession of it with his family from June, 1861, to the fall of 1861. In 1869 there was a partition between Finnell and Wintersmith, by the terms of which Wintersmith deeded to Finnell the south 40 acres of the tract. Finnell sold and conveyed this tract of 40 acres to George G. Street on February 23, 1871. Street sold and conveyed the 40 acres to Hansbrough about March 1, 1871, and afterwards, on January 30, 1872, Hansbrough conveyed the 40 acres to George W. Burton. The testimony does not show certainly whether the taxes of 1864 were paid by Forsythe or Finnell, but it does show that Finnell paid all the taxes from 1865 to 1870, inclusive. If it be conceded, however, that Finnell paid all the taxes during the seven years from 1864 to 1870, inclusive, there is no evidence either that the premises were vacant and unoccupied during these seven years, or that they were in his possession during the whole period of the seven years. There was a house on the land, in the occupancy of a tenant, in 1865, 1866, 1867, and 1868; but, as to the years 1869, 1870, and 1871, there is nothing to show whether the premises were vacant and unoccupied, or in the possession of someone. It is not proven that the house and tenant referred to remained there after 1868. Porter and Hitt swear that the 80 acres were vacant in April, 1872, but at what time they became so between 1868 and 1872 does not appear. Hansbrough swears that the land...