| Ill. | Mar 26, 1884
delivered the opinion of the Court:
The deed from the executors of the estate of Eliza Garrett, to Stevens, we think was color of title. Monuments always prevail over distances. This deed purported to convey to Stevens lots 10 and 11, in the Garrett subdivision. These lots, by the plat and stakes, covered the 51 feet next north of this fence, and embraced the land in controversy. It is true the deed says the north-west corner is 216 feet south of the north-west corner of the Garrett tract, when the northwest corner of this 51 feet was, in fact, 222 feet south of the Garrett tract, by the description in the deeds to the property lying next north, but whether more than 216 feet south of the inclosure, does not appear. It is not a question of accuracy of measurement. The question is, what land did this deed purport or profess to convey.
Color of title is said to be that which in appearance is a title, but which in reality is not. (Wright v. Matteson, 18 How. 56.) It must apparently transfer title to the holder,— must profess to convey a title. (Coleman v. Billings, 89 Ill. 183" date_filed="1878-06-15" court="Ill." case_name="Coleman v. Billings">89 Ill. 183.) It must apparently convey title. (79 Ill. 241.) The intent of the parties as to boundaries, as gathered from the language employed, will be effectual, (Tyler on Boundaries, 132,) and the surroundings under which the language was used may be considered to give construction to the words. That part of a description which the parties must be supposed most fully to understand, will triumph. (Lincoln v. Wilder, 29 Maine, 169.) The fence, and surveyor’s marks upon the ground, were, in themselves, facts. The statement of distance from the north-west corner of the Garrett tract was an attempt to describe a fact. 11 Ill. 554" date_filed="1850-06-15" court="Ill." case_name="Board of Trustees v. Haven">11 Ill. 554.
This case was before this court at a former term. (101 Ill. 483" date_filed="1882-01-18" court="Ill." case_name="Bolden v. Sherman">101 Ill. 483.) In passing upon the evidence given at a former trial, this deed was there treated as color of title, although it was held not to be color of title of record, because the stakes and the fence did not appear of record. Stevens, then, entered under color of title, and paid all taxes upon this land for seven consecutive years, the last payment being made June 12, 1869, as is shown by the tax receipts, fixing the date of the payment for each year. There can be no doubt as to his good faith, for no claim was made by Sherman to land north of the line of the old fence, until after 1869. This makes a prima facie case for the appellants. To rebut this, Sherman testifies, generally, and in answer to a leading question, that he, by himself or his agent, paid the taxes upon this same land for each of those years. He fails to show either the amount or the date of any of these payments. He produces no receipts for the taxes of those years, and no adequate reason for their non-production. He swears he has not all of his tax receipts in his possession, and that the agent who paid part of the taxes is dead. He does not show these tax receipts are lost or destroyed. The prima facie case of appellants must stand, unless appellee shows that the taxes on this land, for some one of these years, were paid before appellants made such payments.
It is insisted that this court, in its opinion in this case when it was' here before, held otherwise. At the first trial, counsel for appellants admitted, for the purposes of that trial, that appellee had paid all taxes for these years, and undertook to overcome that admission by proving that appellants had also paid taxes for the same years, but failed to show which payments for the same year were made first. We said, this admission must defeat appellants, in this regard, unless it was shown that appellants paid, each and every year, before the payment made by appellee. The defendants having admitted, on that trial, that plaintiff had paid the taxes for certain given years, may well be taken to be an admission that no one had paid the taxes before such payment by plaintiff, for if the same taxes had been paid already by another there would be no taxes to pay, and hence the admission itself, in the terms in that record, repelled the idea of a former payment by defendants. The case before us now contains no such admission. On the contrary, on this trial the appellants made a prima facie defence, by proving payment of taxes, and the date of each payment. To overcome this ease so made, the burden was cast upon appellee to prove payment of taxes for the same years, before the payment by appellants. Testimony that he had paid taxes for the same years does not affect the appellants, unless it be shown the taxes for some one of these years were paid by appellee before the date of appellants’ payment for the same year.
We think the defence was well sustained on the second trial. The judgment is therefore reversed, and the cause remanded.
Judgment reversed.