Travers v. McElvain

• Decision Date: 19 October 1899
• Citation: 55 N.E. 135,181 Ill. 382
• Parties: TRAVERS v. McELVAIN.
• Court: Illinois Supreme Court

181 Ill. 382

55 N.E. 135

TRAVERS

v.McELVAIN.

Supreme Court of Illinois.

Oct. 19, 1899.

Appeal from circuit court, Hamilton county.

Ejectment by Ernest M. Travers against W. A. McElvain. Judgment for defendant, and plaintiff appeals. Affirmed.

Webb & Lane and Arthur Keithley, for appellant.

T. M. Eckley, for appellee.

This is an action of ejectment, originally brought on April 11, 1896, by the appellant against the appellee and John M. Gibson and Charles M. Morris for the recovery of 160 acres of land, described as the ‘northwest quarter of section 3, township 7, in Hamilton county.’ On September 29, 1896, a plea of the general issue was filed. A verified plea was also filed by the appellee, denying possession of the southwest quarter of said northwest quarter. Gibson and Morris were in possession of the southwest quarter of the northwest quarter; and the suit was dismissed as to them, and an amended declaration was filed, describing the property sought to be recovered as the northwest quarter of said section 3, except the southwest quarter thereof. A jury was waived, and the cause was submitted by agreement for trial to the court without a jury. The trial court, after hearing the evidence, made a finding and entered judgment in favor of the defendant below, the appellee here, to which the appellant, the plaintiff below, excepted. The present appeal is prosecuted from the judgment so entered in favor of the appellee.

MAGRUDER, J. (after stating the facts).

In this action the appellant does not seek to recover as owner of the paramount title, but claims to have acquired title under section 7 of the limitation law, which was section 2 of the act of 1839. 2 Starr & C. Ann. St. p. 1547. It is the doctrine of this court that, where a plaintiff in an action of ejectment relies for his right of recovery upon section 7 of the present limitation act of this state, he must not only prove that he had color of title, and that he paid taxes for seven successive years upon the premises while they were vacant and unoccupied, but he must also prove that, after the lapse of the seven years, he took possession of the premises. Gage v. Hampton, 127 Ill. 87, 20 N. E. 12;McCauley v. Mahon, 174 Ill. 384, 51 N. E. 829. Whenever the bar of the statute has become absolute by the payment of all taxes legally assessed upon vacant and unoccupied land for seven successive years by a person having color of title thereto, made in good faith, and such person afterwards gets into possession of the land under such title, he has a title which is just as available for attacking as for defensive purposes. The holder of such title may assert the same either as a defense, or to regain his possession if it is invaded. In the present case, the evidence shows that on June 16, 1864, a tax deed was executed by the sheriff of Hamilton county, conveying the property in controversy to Aaron G. Cloud. The proof tends to show that Aaron G. Cloud, having this tax deed as color of title, paid all the taxes upon the premises in question, while the same were vacant and unoccupied, for some 9 or 10 years. The first payment of taxes by Cloud was made on March 29, 1865, and the last payment was made on June 20, 1874. No tax receipts were produced showing the payment of taxes, nor was any oral evidence of such payment by the parties making the same produced at the trial. Cloud died in 1893. The payment of taxes was sought to be shown by entries upon the collector's books of Hamilton county for the respective years in which the payments were made. Counsel for appellee criticises the evidence in regard to the payment of taxes as being indefinite and incertain. The rule is that proof as to the payment of taxes under color of title must be clear and convincing, as such payment, when relied upon, operates to defeat the paramount title. Paramount title should not be overcome by loose and uncertain testimony, or by mere conjecture, or by violent presumption. Hurlbut v. Bradford, 109 Ill. 397;Burns v. Edwards, 163 Ill. 494, 45 N. E. 113. The entries upon the collector's books do indicate some indefiniteness and uncertainty as to the description of the property upon which the taxes were paid. It seems to be difficult to determine, from some of these entries, whether the alleged payments were made upon the property here in controversy or upon property in some other section and township than section 3 and township 7. But we do not deem it necessary to decide in this case that the appellant's proof in regard to payment of taxes for seven successive years was insufficient to establish such payment. It may be conceded, for the purposes of this case, that the evidence in regard to the payment of taxes was sufficient. It was, however, necessary for the plaintiff to show that, after the bar of the statute had become complete by the payment of taxes for seven successive years upon the land while it was vacant and unoccupied, the holder of the color of title then took possession of the land. The plaintiff was not entitled to recover, unless he showed possession taken after the previous accruing of the bar. We do not think that the evidence in the record shows that such possession as the statute contemplates was taken after the lapse of the seven years.

There are several well-established rules as to what constitutes possession, which may be applied to the facts of this case in order to determine whether the acts of possession set up by the appellant constituted such possession as the law requires. The land must be appropriated to individual use in such a manner as to apprise the community or neighborhood that it is in the exclusive use and enjoyment of the person so appropriating it. The possession of land may be acquired by any use which clearly indicates an appropriation by the person who claims to hold the property. Gage v. Hampton, supra. The possession should be of such open and visible character as to apprise the world that the property has been appropriated, and is occupied. It must also be of such a character as to indicate who the occupant is, and it must be consistent with such use and occupancy as the property is suited for or adapted to. The occupancy must be exclusive. If the possession is only used and enjoyed in common with others, or the public in general, it cannot be regarded as hostile to other persons claiming title. Its character must be such as to arrest attention, and put other persons claiming title upon inquiry. Such possession cannot be made out by inference, but only by clear and positive proof. Truesdale v. Ford, 37 Ill. 210;McClellan v. Kellogg, 17 Ill. 498;Downing v. Mayes, 153 Ill. 330, 38 N. E. 620;Davis v. Howard, 172 Ill. 340, 50 N. E. 258. In Gage v. Hampton, supra, we said: ‘Possession of land may be acquired and held in different modes,-by inclosure, by cultivation, by the erection of buildings or other improvements, or, in fact, by any use that clearly indicates an appropriation to the use of the person claiming to hold the property.’ Truesdale v. Ford, 37 Ill. 210. Cloud, the holder of the color of title, who paid taxes on the land for seven successive years while it was vacant and unoccupied, never took possession at all. This is conceded by appellee. In 1875 Cloud conveyed the premises to Quackenbush and Duncan, who, in 1878, conveyed the same to one Whitley. In the same year Whitley conveyed them to Luther, who conveyed them to one Hunter in 1879. On April 27, 1883, Hunter conveyed the same to Thomas H. Travers, an uncle of the present appellant. On July 6, 1883, Thomas H. Travers conveyed the premises to his nephew, the present appellant, Ernest M. Travers. So far as the record shows, no taxes were paid upon the premises by any of the parties holding...