Taylor v. Lawrence

• Decision Date: 16 January 1894
• Citation: 36 N.E. 74,148 Ill. 388
• Parties: TAYLOR et al. v. LAWRENCE.
• Court: Illinois Supreme Court

148 Ill. 388

36 N.E. 74

TAYLOR et al.

v.LAWRENCE.¹

Supreme Court of Illinois.

Jan. 16, 1894.

Error to circuit court, Grundy county; George W. Stipp, Judge.

Bill by Edmund D. Taylor against Orpheus A. Root for partition. Pending suit, Margaret Taylor and others were substituted as complainants, and Helen J. Lawrence was substituted as defendant. The bill was dismissed at the hearing. Complainants bring error. Reversed.

Brewer & Strawn, for plaintiffs in error.

S. C. Stough, for defendant in error.

PER CURIAM.

November 9, 1881, Edmund D. Taylor filed a bill for partition, claiming title to an undivided one-half of the S. W. 1/4 of section 19, township 33 N., range 8 E. of the third P. M., in Grundy county, Ill. The defendant Orpheus A. Root was in possession under a tax title. Pending the litigation, in November, 1885, Helen J. Lawrence purchased Root's title, and was made a defendant to the bill. The defendant Helen J. Lawrence, in her answer to the bill, set up two tax deeds,-the first, dated November 22, 1860, for the east nine acres of the quarter section; and the second, dated July 26, 1861, for the west 149.88 acres,-and also seven years' possession and payment of taxes under color of title. In an amended answer she also set up seven years' actual residence under the tax titles, and also payment of taxes for seven years under color of title while the land was vacant and unoccupied. After a hearing of the cause, but before a decision was reached, the complainant died, and his heirs were made complainants to the bill, and upon a final hearing on the pleadings and evidence the court rendered a decree dismissing the bill, to reverse which the complainants sued out this writ of error.

It appeared on the hearing that the quarter section of land was patented to James Whitlock, and it may be conceded that a regular chain of title was established from Whitlock to Edmund D. Taylor for the undivided one-half of the quarter, and under this title the complainants would be entitled to recover, unless barred by the statute of limitations set up by the defendant in the answer. We shall not stop to consider whether the title passed under the judgment for taxes, sale, and deeds. Nor will it be necessary to determine whether the defendant established by the evidence actual residence for seven years under a connected title deducible of record, as required by the act of 1835, or under the second section of the act of 1839. But we think the decision of the case may be properly predicated on section 1 of act of 1839, which, in substance, declares that every person in the actual possession of land under claim and color of title made in good faith, and who shall for seven successive years continue in such possession, and shall during said time pay all taxes legally assessed on such land, shall be adjudged to be the legal owner to the extent and according to the purport of his or her paper title. In order to defeat the complainants' title, and establish a bar under this section of the statute, it became necessary for the defendant to prove in herself-First, color of title; second, seven successive years' possession by herself or grantors under such color of title; third, payment of taxes during the said seven years' possession. The defendant, Helen J. Lawrence, for the purpose of proving color of title, read in evidence the following conveyances: November 22, 1860, tax deed to J. D. Matthews, 9 acres; July 27, 1861, tax deed to J. D. Matthews, 149.88 acres; August 29, 1862, John D. Matthews to David Matthews, deed, S. W. 1/4; March 25, 1869, David Matthews to Andrew J. Merrin, E. 80 acres; March 25, 1869, David Matthews to Richard Merrin, W. 78.88 acres; March 25, 1869, Andrew J. Merrin to David Matthews, sale mortgage, E. 80 acres; March 25, 1869, Richard Merrin to David Matthews, sale mortgage, W. 78.88 acres; May 3, 1876, Edward D. Matthews to William E. Lewis, deed, E. 80 acres; May 3, 1876, Edward D. Matthews to William E. Lewis, deed, W. 78.88 acres; May 19, 1876, William E. Lewis to Edward D. Matthews, deed, S. W. 1/4; November 29, 1880, Edward D. Matthews to Orpheus A. Root, deed, S. W. 1/4; November 16, 1885, Orpheus A. Root to Helen J. Lawrence, deed, S. W. 1/4. It is plain that J. D. Matthews acquired color of title by the tax deeds of 1860 and 1861, and it is clear that the color of title passed by regular chain of conveyance to the defendant Lawrence, unless the foreclosure of the sale mortgages by Edward D. Matthews, and the conveyance by him to William E. Lewis, was unauthorized. The mortgages given by the Merrins to David Matthews upon default of payment authorized the mortgagee or his legal representatives to advertise and sell the land in payment of the indebtedness. Under this power, Edward D. Matthews, as administrator of the estate of Edward Matthews, advertised, sold, and conveyed the land to Lewis.

Waiving for the present the determination of the question of the authority of Matthews to execute the power of sale, and assuming that the record shows a regular chain of valid conveyances from Matthews to the defendant, the first question to be considered is whether the evidence shows seven years' possession of the premises under color of title. The land was vacant and unoccupied until the spring of 1869. On the 25th day of March, 1869, the Merrins obtained deeds from David Matthews, and at once went into possession of the land under that title, and commenced improving it. In 1870 they leased it to J. N. Patterson, who farmed the land under the lease that year. The next season the Merrins moved on the land; remaining there, cultivating it, until they were dispossessed by an action of forcible detainer in 1878 or 1879, brought by Lewis, who acquired their title under the foreclosure sale made by E. D. Matthews, May 3, 1876, wherein the land was sold in satisfaction of a mortgage they had given David Matthews for the purchase money for the premises. Here was a period of over seven years that the land was occupied and cultivated by the Merrins under the title they acquired of Matthews, which passes by mesne conveyance to the defendant. It is claimed, however, that in the spring of 1871 Taylor instituted suit in the district court of the United States at Chicago, and recovered possession of the land, and he subsequently sold it by verbal contract to one of the Merrins. We find no satisfactory evidence in the record to sustain this position. The evidence is clear that the Merrins entered under the Matthews title, and occupied under it so long as they were on the land. It is perhaps true that when the Merrins discovered that the mortgage they had given Matthews was being foreclosed, they attempted to set up that they were holding possession under Gay, of St. Louis, but they could not dispute the title under which they entered, and attorn to him, as was settled by Merrin v. Lewis, 90 Ill. 507. We think it apparent from the testimony that possession of the land was held under the Matthews title, and that alone, from 1869...