Robbins v. Moore

• Decision Date: 14 May 1889
• Citation: 21 N.E. 934,129 Ill. 30
• Parties: ROBBINS et al. v. MOORE et al. GILBERT et al. v. MOORE et al.
• Court: Illinois Supreme Court

129 Ill. 30

21 N.E. 934

ROBBINS et al.

v.MOORE et al.¹

GILBERT et al.

v.MOORE et al.

Supreme Court of Illinois.

May 14, 1889.

Error to circuit court, De Witt county; GEORGE W. HERDMAN, Judge.

Bill by Rufus W. Robbins against Clifton H. Moore, Thomas J. Bunn, and others, to foreclose a mortgage. Cross-bill by Clifton H. Moore and Vespasian Warner against William L. Gilbert, Henry Gay, and Rufus W. Robbins. At the hearing, complainant dismissed the original bill, the cause was heard upon the issues raised by the cross-bill, a decree was rendered for the complainants therein, and defendants bring error. Rev. St. Ill. c. 83, § 6, provides that ‘every person in the actual possession of land, under claim and color of title made in good faith, who shall for seven successive years continue in such possession, and shall also during said time pay all taxes legally assessed on such land, shall be held to be the legal owner of said land according to the purport of his paper title.’

CRAIG, J., dissenting.Williams & Capen, for plaintiffs in error.

Moore & Warner, for defendants in error

PER CURIAM.

November 15, 1855, John P. Mitchell purchased at the United States government land sales, the S. 1/2 of the S. E. 1/4, and the S. E. 1/4 of the S. W. 1/4 of section 27, and Clifton H. Moore the S. W. 1/4 of the S. W 1/4 of the same section, in township 19 N., range 3 E.; and on February 20, 1856, Thomas J. Bunn was allowed to enter the same lands as a pre-emptor, he claiming to have made settlement and placed improvements thereon, beginning November 8, 1855. February 22, 1856, Thomas J. Bunn and wife mortgaged this land to his father, Lewis Bunn, to secure a loan of $1,000, payable in three years, with 6 per cent. interest. Mitchell and Moore contested the right of Bunn to pre-empt the land before the register of the land office, and upon hearing, January 20, 1858, the register held that the contestants had failed to make out their case, and sustained Bunn's entry, finding that the entries by Moore and Mitchell should be canceled. They appealed from this decision to the commissioner of the general land-office, who reversed the decision of the register, and ordered the entry of Bunn to be canceled, and that patents issue to Moore and Mitchell for the respective tracts purchased by them. While the case thus stood, on February 1, 1859, a patent was issued to Moore for the S. W. 1/4 of the S. W. 1/4 of said section 27, but none was issued on the Mitchell entry. Shortly after the decision by the commissioner, an appeal was taken by Bunn to the secretary of the interior, who on June 22, 1860, reversed the decision of the commissioner, reinstated the decision of the register, ordered the patent issued to Moore to be returned, and a patent to issue to Bunn for the whole of his entry. Application was made to the secretary of the interior, August 23, 1868, to reopen said cause, and for rehearing. The application was denied 11th day of September, 1868. In the spring of 1862, Thomas J. Bunn, being desirous of selling the land, and Lewis Bunn wanting his money, offered to sell the land to Rufus W. Robbins, and Robbins proposed to purchase the same. It is contended by Robbins that, before he would purchase, he went to Mitchell and asked him if he had any claim on the land; saying, if there was any dispute about the title, he would have nothing to do with it. Robbins testifies that, in answer to such inquiry, Mitchell said he had had a lawsuit about the land with Bunn, but that Bunn had beaten him, and that he (Mitchell) did not have any claim on the land, and for him (Robbins) to go ahead and buy it. Robbins alleges that on this assurance of Mitchell he bought the land of Bunn, and paid the entire purchase money; and that, acting under the advice of counsel, instead of taking a deed at that time from Bunn he took an assignment of the mortgage from Thomas J. to Lewis Bunn; counsel advising that he had better get his title through the foreclosure of said mortgage. There is considerable conflict in respect of what occurred, but it would seem that Robbins is corroborated to a greater or less extent by the testimony of the two Bunns. Robbins also claims that Mitchell, at the time of the conversation before referred to, expressed a willingness to quitclaim any interest he might have in the property to the Bunns, and that on the day when he (Robbins) purchased the land of Bunn, taking an assignment of the note and mortgage before referred to, there was present in possession of one of the Bunns a deed executed by Mitchell and wife, conveying the property to Bunn, but which, upon the statement by Robbins that Mitchell had disclaimed any interest in the land, he advised was unnecessary, and which, acting under the advice of counsel, Bunn then destroyed. The corroboration in respect of said deed comes from Thomas J. Bunn alone, who does not remember anything more than that a paper was present, which on the back purported to be a deed from Mitchell and wife to this land. It is shown, however, sometime prior to the sale to Robbins, that conversations took place between Lewis Bunn and Mitchell. In these conversations Mitchell expressed himself as tired of litigating in respect of this land, and offered to quit if Bunn would pay the costs that had accrued in the litigation before the governmental departments. It is also shown that Bunn subsequently paid about $300 costs therein, but it is not shown that they were Mitchell's costs, and on the other hand it is not shown or claimed that Mitchell paid any costs. In respect of the execution of the deed by Mitchell there is a sharp conflict in the evidence. On April 11, 1866, Robbins filed his bill in the De Witt circuit court to foreclose the mortgage from Thomas J. to Lewis Bunn, making Thomas J. Bunn and wife and Moore parties defendant. Moore answered setting up his title to the 40 acres, S. W. 1/4 of S. W. 1/4 section 27, and disclaiming as to the residue of the land. On April 10, 1868, Robbins by leave amended his bill, making David Davis a party defendant, alleging that said Davis claimed title to the S. E. 1/4 of the S. W. 1/4 of said section under a sale on execution against Mitchell, and a deed thereon, and sought to have Davis' title set aside as a cloud on his title; and also alleging the issue of a patent to Moore, by inadvertence or mistake, for the S. W. 1/4 of the S. W. 1/4 of said section; and sought to compel Moore to convey the title thus acquired to him (Robbins.) Davis and Moore both answered, denying the validity of Bunn's entry as a pre-emptor, and claiming that the entries by Mitchell and Moore were valid. At the November term, 1869, the court rendered a decree of foreclosure in the usual form against all the land, except the S. W. 1/4 of the S. W. 1/4 of section 27, patented to Moore, and dismissed the bill as to him and as to said tract. Prior to the rendition of this decree, and on April 8, 1868, Thomas J. Bunn and wife, by their deed, conveyed all said land to Robbins, which said deed was recorded November 10, 1868. On appeal of Robbins to this court, the decree in the case of Robbins v. Bunn before mentioned was reversed, and the cause remanded; this court holding that the decision of the secretary of the interior was conclusive as to Moore, and that Robbins was entitled to a decree against the whole of the land. Robbins v. Bunn, 54 Ill. 48. Without further action in the state courts, Moore and Davis, by writ of error, took the case to the supreme court of the United States, where the writ was dismissed for want of jurisdiction, that court holding there was no final judgment in this court. 18 Wall. 588.

In the mean time the cause was redocketed in the circuit court of De Witt county, and such proceedingshad that on March 17, 1874, a decree was entered in favor of Robbins in accordance with the opinion of this court. Moore and Davis appealed from that decree to this court, and the decree of the court below was affirmed. Moore and Davis then sued out a writ of error from the supreme court of the United States to this court, on which writ of error the judgment of this court was reversed, and the entry of Bunn held to be invalid, and the entry of Moore and Mitchell good. 96 U. S. 530. On the remanding order being filed, this court reversed its former ruling and the decree of the circuit court, and remanded the cause. Prior to the entry of the decree last mentioned in the circuit court, and on March 7, 1874, a patent was issued by the United States to Thomas J. Bunn for all of said land, being the S. 1/2 of the S. E. 1/4 and the S. 1/2 of the S. W. 1/4 of said section 27, and on May 16, 1874, Thomas J. Bunn and wife by their quitclaim deed conveyed all their right and title in the premises to Robbins. On December 25, 1874, Mitchell died, leaving a widow and three children, his only heirs at law. Mitchell was at no time made a party to the bill of Robbins, or anywise connected of record with that litigation. After the decision of the supreme court of the United States holding the Mitchell entry valid, and on March 3, 1879, Clifton H. Moore and Vespasian Warner procured a quitclaim deed from the widow and heirs of Mitchell for the S. 1/2 of the S. E. 1/4 of said section 27. Before the purchase by Moore and Warner, March 3, 1879, Robbins borrowed of William L. Gilbert and Henry Gay $500, and to secure the payment of the same made, executed, acknowledged, and delivered his deed of trust to Hudson Burr, trustee, on the said S. 1/2 S. E. 1/4 section 27, which loan matured May 1, 1879, with interest. The date of this trust-deed from Robbins to Burr was April 30, 1878, and it was recorded the same day. August 6, 1879, Davis filed his cross-bill, seeking to set aside the patent to Bunn as to the S. E. 1/4 of the S. W. 1/4 of said section 27. September 11, 1879, Moore and Warner obtained leave of the court to intervene and answer, and also to file their cross-bill. On the...