Russell v. Mandell

• Decision Date: 30 September 1874
• Citation: 1874 WL 8938,73 Ill. 136
• Parties: CORNELIA RUSSELLv.CHRISTIAN MANDELL.
• Court: Illinois Supreme Court

73 Ill. 136

1874 WL 8938 (Ill.)

CORNELIA RUSSELL

v.CHRISTIAN MANDELL.

Supreme Court of Illinois.

September Term, 1874.

APPEAL from the Superior Court of Cook county; the Hon. JOHN BURNS, Judge, presiding. Messrs. FORRESTER, BEEM & GIBBS, and Mr. BUCKNER S. MORRIS, for the appellant.

Mr. ALLAN C. STORY, and Mr. RUFUS KING, for the appellee.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

In the view we take of this case, it will be unnecessary to pass upon the evidence relating to the deed purporting to have been made by appellant and her husband to Harriet A. Smith and Frances E. Hotchkiss, and dated July 8th, 1855.

We see no objection to the abstract prepared by Hawley and Simmons, with reference to the property in controversy, so far, at least, as it relates to the deed of I. H. Trabue to Harriet A. Smith and Frances E. Hotchkiss.

Hotchkiss testified this deed was in his possession in 1865, and was destroyed; and he shows how it was destroyed, so that in this respect there is no ground of objection. It was also shown that the record of the deed was burned; that the abstract was made by Hawley and Simmons, in the ordinary course of business, prior to the destruction of the record, and that it was delivered to the parties interested in the land. This was all that is required, to admit the abstract as evidence under the 24th section of the act of 1872, known as the “Burnt Record Act,” Revised Statutes of 1874, p. 846, sec. 29.

The Trabue deed was made for a valuable consideration, purported to convey the land in controversy, and there is no evidence from which bad faith in its acceptance by the grantees can be inferred. It is true, the abstract of title furnished the grantees showed that appellant was the patentee of the land from the government, October 1, 1839, and failed to show that she had parted with her title, but this is not sufficient to charge the grantees with bad faith.

It was said, in McCagg et al. v. Heacock et al. 42 Ill. 157, “The doctrine is, that bad faith, as contradistinguished from good faith, in the Limitation Act, is not established by showing actual notice of existing claims or liens of other persons to the property, or by showing a knowledge, on the part of the holder of the color of title, of legal defects which prevent the color of title from being an absolute one. Where there is no actual fraud, and no proof showing that the color of title was acquired in bad faith, which means in or by fraud, this court will hold it was acquired in good faith.” And the same rule was, in substance, previously announced when the case was before this court at a prior term. McCagg et al. v. Heacock et al. 34 Ill. 479. See, also, Rawson v. Fox et al. 65 Id. 200. Possession, therefore, under this deed, may be regarded as under color or claim of title made in good faith, and since appellant's husband died more than nine years before the commencement of the suit, it only remains to be determined whether the evidence shows that appellee has been in the actual possession of the property, and paid all taxes legally assessed thereon, for seven successive years, so as to bring the case within the 1st section of the Limitation Act of 1839.

The payment of taxes for the requisite length of time has been proved, and no objection on that account is urged, except with reference to the taxes for the year 1864. Smith and Hotchkiss conveyed in ...