Anoweurth v. Burlingin, 1 F. Cas. 1036

Anoweurth v. Burlingin

1 F. Cas. 1036 | U.S. Circuit Court for the District of Illinois | 1848

Th Hi COURT

decided as to the act of 1835, ’that possession, without title would not avail; that the supreme court of Illinois, in 1837, in the case of Garret v. Higgins, [Garret v. *1037Wiggins, 1 Scam. 335,] had decided, that the auditor’s deed, unaccompanied with proof of the performance of the essential requisites of the law, conveyed no title. Therefore, the defendant is not protected hy that law. Also that the law of 1838-39 was unconstitutional and void, because it purports to convey to one man the land of another. The court farther decided, that the auditor’s deed, unaccompanied as in the case at the bar by proof that he had performed all the requisites of law authorizing him to sell the land for taxes, conveys no title. Therefore, the defendant is not protected by “claim and color of title made in good faith” in the meaning of the law. The court defined the “claim and color of title made in good faith” under this law, to be such a title as in law would pass the estate prima facie, if a better title be not shown. That it is a question of law, and not depending upon the opinion of the occupant, otherwise the defence would depend upon the capacity of the man 'fo judge; in which case it would protect one and not avail another, who might be more intelligent.

[NOTE. The points determined in this case were originally published in the St. Louis (Mo.) New Era, and reprinted in 6 West. Law J. (1848,) 431. See Arrowsmith v. Burlingim, Case No. 533. J