White v. Harris

• Decision Date: 16 December 1903
• Parties: WHITE v. HARRIS et al.
• Court: Illinois Supreme Court

206 Ill. 584

69 N.E. 519

WHITE

v.HARRIS et al. ^*

Supreme Court of Illinois.

Dec. 16, 1903.

Appeal from Circuit Court, Greene County; Robt. B. Shirley, Judge.

Action by Sarah E. Harris and others against George H. White and others. From a judgment for plaintiffs, defendant White brings error. Reversed

This is an action of ejectment, brought on August 23, 1895, in the circuit court of Greene county, by Sarah E. Harris, widow, and Mary J. Dunaway and others, heirs at law, of John Harris, deceased, as plaintiffs, against the plaintiff in error, White, and his two tenants, as defendants, to recover possession of 200 acres of land in Greene county, described as the northeast quarter, and the northeast quarter of the southeast quarter, of section 31, town 10 north, range 13 west. The plea of not guilty was filed. The cause was tried before the court and a jury. The jury found the plaintiffs below (defendants in error here) to be the owners in fee simple and entitled to the possession of the real estate described in the declaration, and found the defendants below guilty of withholding the premises. Motion for new trial was overruled, and on September 9, 1898, the court rendered judgment that the plaintiffs recover against the defendants the possession of the premises according to the finding of the jury, and that they have a writ of possession therefor, etc. The present writ of error is sued out for the purpose of reviewing the judgment so entered by the circuit court.

Edward Boyle and Henry T. Rainey, for plaintiff in error.

Frank A. Whiteside, for defendants in error.

MAGRUDER, J., after stating the facts, delivered the opinion of the court.

Upon the trial of this action of ejectment in the court below, the plaintiffs there (defendants in error here) did not claim to be the owners of the paramount or government title, but sought to recover under section 7 of the limitation law in regard to vacant and unoccupied lands. 2 Starr & C. Ann. St. (2d Ed.) p. 2618, c. 83. Where a plaintiff in an action of ejectment relies for his right of recovery upon this section 7, 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. Paullin v. Hale, 40 Ill. 274;Gage v. Hampton, 127 Ill. 87, 20 N. E. 12,2 L. R. A. 512;McCauley v. Mahon, 174 Ill. 384, 51 N. E. 829;Travers v. McElvain, 181 Ill. 385, 55 N. E. 135.

The defendants in error introduced in evidence, as color of title, a deed dated November 18, 1867, and recorded November 20, 1867, executed by William J. Vandyke, as grantor, and conveying to John Harris, as grantee, the 200 acres in question. The title of John Harris and all those under whom he held was based upon a tax deed. John Harris died on May 17, 1888, intestate, and left the defendants in error as his widow and heirs at law. It is claimed on the part of defendants in error that John Harris in his lifetime paid all the taxes upon the 200 acres in question, while the land was vacant and unoccupied, under the deed from Vandyke to himself as color of title, and that after the lapse of the seven years he took possession of the land. In order to prove the payment of taxes, the defendants in error introduced certain tax receipts to show the payment of taxes by John Harris in his lifetime for the years from 1867 to 1887, inclusive, and by his widow and heirs after his death for a number of years subsequent to 1888 and including that year, but did not pay them for the years 1890 and 1891. None of these tax receipts for the years from 1867 to 1875, inclusive, are dated, and do not show upon what dates the taxes for those years were paid. Defendants in error claim that the premises were vacant and unoccupied from 1867 to 1874, inclusive, and that during those years they paid all the taxes legally assessed upon the land. Their further contention is that they took possession of the land in 1874 or in 1882. The evidence and the arguments leave it somewhat in doubt whether the claim is that one possession was taken in 1874 and another in 1882, or whether there was a continuous possession from 1874 to 1882.

The proof shows conclusively that the land in question was swamp land and liable to overflow. It did overflow very often, generally in the spring, and sometimes was under water to the depth of from 8 to 15 feet. There was also much timber upon the land. Three circumstances are relied upon by defendants in error as acts of possession. The first is that in 1874 John Harris had the 200 acres of land surveyed, and put stones at the corners of the quarter sections. The second circumstance is that, after he obtained his deed, John Harris employed a farmer, named Bushnell, whose farm adjoined the land in question, to act as his agent, and his duty as agent was to keep people from cutting the pin oak timber upon the land. Bushnell was to have the privilege of cutting the ash timber upon the land and of pasturing his cattle upon it. Bushnell states in one part of his testimony that he went upon the land about once a month, and, in another part thereof, that he went upon the land about once a week. There is some testimony tending to show that at different times Bushnell stopped or prevented certain persons from cutting timber upon the land, but there is much testimony also tending to show that the land was used by the public and the people living in the neighborhood for the purposes of fishing, hunting, cutting timber, and pasturing their cattle. Whatever acts were done by Bushnell were occasional and done at long intervals. Bushnell testifies that he acted as agent for the party having a deed to the land before John Harris obtained his deed. Vandyke, the grantor of Harris, obtained his deed from one Jenks on September 16, 1867. Bushnell further testifies that thereafter he acted as agent for Harris, in the manner already stated, for some 10 or 11 years. It is somewhat uncertain from the testimony, and from the statements of counsel in their argument, whether the agency of Bushnell was for 10 or 11 years after 1867, or 10 or 11 years after 1874. The third circumstance relied upon by defendants in error as showing possession by John Harris is that a hut or shanty, or, as some of the witnesses call it, a ‘hunting shack,’ was erected upon the 200 acres about September 1, 1882. The proof tends to show that Harris, who at that time lived at Carrollton, some 14 miles from the land, gave $10 to one Withers, an attorney, and authorized Withers to cause the erection of the house in question upon the premises. Withers employed a man named Goans to erect the house or shanty, and paid the latter the $10 for doing so. This house or shanty is described as being about 10 by 12 feet, and about 5 or 6 feet high. It was built of logs, and the spaces between the logs were filled with mud. The roof was of clapboards and sloped one way. It had no windows and no floor. After Goans built it, he and several others, who helped him to build it, stayed there to hunt ducks for several days. Goans testifies that he stayed there a week or two weeks, he could not remember which, and then chained the door and left the premises. The proof also shows that in the spring of 1883 the shanty or house was washed away by the water, and was never rebuilt, nor was any other structure erected in its place.

Even if the survey of the land and the placing of the stone monuments at the corners of the quarter section were such acts of possession as the law required after the payment of taxes for seven successive years on vacant and unoccupied land under the terms of section 7, yet the defendants in error can derive no benefit therefrom under the facts of this case. There is nothing in the evidence to show when John Harris made the first payment of taxes upon the 200 acres. The receipt which purports to show a payment of taxes for the year 1867 is not dated. The deed, however, from Vandyke to Harris, which is relied upon as color, was dated November 18, 1867. The survey of the land and the placing of the stone monuments took place on the 6th day of November, 1874. The certificate of the surveyor to the plat of the survey, as well as the testimony of the witnesses, shows that the date of the survey was November 6, 1874. There were not seven successive years between November 18, 1867, and November 6, 1874. The first payment of taxes was required to be under the color of title, and the color of title was dated November 18, 1867. Therefore, the first payment of taxes must have been subsequent to November 18, 1867. In McConnel v. Konepel, 46 Ill. 519, we said: ‘The settled construction of the limitation law of 1839 is, not that seven years must elapse between the date of the first payment of taxes and the date of the last payment, but that all the taxes must be paid for seven successive years, and that seven years must elapse from the date of the first payment, when the statute begins to run, before the commencement of the suit, or possession taken of the land, where the bar is claimed under the ninth [or seventh] section.’ See, also, Lyman v. Smilie, 87 Ill. 259;Burton v. Perry, 146 Ill. 71, 34 N. E. 60;Converse v. Dunn, 166 Ill. 25, 46 N. E. 747;Whitney v. Stevens, 89 Ill. 53;Duck Island Club v. Bexstead, 174 Ill. 435, 51 N. E. 831;Holbrook v. Debo, 99 Ill. 372. Under section 7 the first payment of taxes is the payment from which the time of limitation begins to run, and must be made after the acquisition of the claim and color of title, and the taxes must be paid by the claimant for a period of seven successive years; otherwise, he is not entitled to the benefit of the statutory limitation. In other words, the payment of taxes and color of title must concur. Stearns v. Gittings, 23 Ill. 387. The language of the section is: ‘Whenever a person having color of title, made...