Thomas v. Eckard

• Decision Date: 31 January 1878
• Citation: 88 Ill. 593,1878 WL 9942
• Parties: WILLIAM THOMASv.MOSES ECKARD et al.
• Court: Illinois Supreme Court

88 Ill. 593

1878 WL 9942 (Ill.)

WILLIAM THOMAS

v.MOSES ECKARD et al.

Supreme Court of Illinois.

January Term, 1878.

APPEAL from the Circuit Court of Mason county; the Hon. LYMAN LACEY, Judge, presiding. Mr. WILLIAM THOMAS, for the appellant.

Mr. E. A. WALLACE, and S. C. CONWELL, for the appellees.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action of ejectment, brought by appellant and others, to the February term, 1876, of the Mason circuit court, against appellees, to recover a number of lots in the town of Topeka. A trial was had by the court without a jury, by consent of the parties, and the court found in favor of plaintiffs, for a portion of the lots, and as to the remainder, for defendants. Plaintiff Thomas thereupon appeals to this court, and assigns errors, and defendants assign cross-errors.

Plaintiffs filed an affidavit that both parties claim to derive title from the same source. The plaintiffs claim, under a deed from appellee Eckard, conveying the lots in fee to appellant, to be held in trust for the benefit of a portion of the creditors of the Illinois River Railroad Company. The deed contained a provision that it should not take effect until the town plat of Topeka should be recorded. Appellees claim under a judgment recovered against the railroad company, an execution thereunder, a sale thereon, and a sheriff's deed for the property in controversy, and also under a tax deed therefor dated on the 1st day of November, 1866.

On the trial, appellant read in evidence Eckard's deed to him, and the town plat, a certificate of acknowledgment of the same and a certificate that it had been recorded. Appellees then read in evidence a judgment in favor of Adam Shock, and against the Illinois River Railroad Company, for $195.92, recovered at the October term, 1864, of the Mason circuit court, an execution thereon to the sheriff of the county and a return thereon that he had sold the lots to plaintiff in execution, a certificate of purchase from the sheriff to Shock and an assignment thereof to Eckard and Conwell, and a sheriff's deed to them for the property, bearing date the 31st of October, 1866. They also offered a judgment for taxes against these lots for the year 1864, a certificate of purchase by Eckard there-under, and affidavit that he published the notice of purchase required by the statute, made three months before the time for redemption expired, but they were rejected by the court. They then read in evidence a tax deed on a sale for taxes to Eckard, which recites a purchase by him, and an assignment of an undivided half to Conwell, which purports to convey the lots to them. It recites the sale, notice of sale, and that the lots had not been redeemed. They then proved the payment of all taxes continuously, on the lots, for ten years after obtaining their deeds, and whilst the lots were vacant and unoccupied.

It is urged by appellant that neither of these deeds is color of title. On the other hand, it is claimed both are color, and the sheriff's deed, under the judgment and execution against the railroad company, conveyed to them the fee in the lots. That either deed is color of title, we can entertain no doubt. That they are, see Huls v. Buntin, 47 Ill. 396, Hassett v. Ridgely, 49 Id. 197, McCagg v. Heacock, 34 Id. 476, Chickering v. Failes, 26 Id. 507, Dickenson v. Breeden, 30 Id. 280, Brooks v. Bruyn, 35 Id. 392, and numerous other cases in our reports. This tax deed, then, being color of title, and all taxes having been paid on the lots for more than seven successive years under it, the bar became complete if appellees were in possession when suit was brought, and the same is true of the...