35 Ill. 392 | Ill. | 1864
delivered the opinion of the Court:
This is an action of' ejectment for the recovery of a quarter section of land in Warren county. The defense is the statute of limitations barring a recovery from persons who, having color of title, acquired in good faith to vacant and unoccupied lands for seven successive vears, have paid all taxes legally assessed thereon during that period. The deed of John Brown to Geo. W. Berrian, dated the 28th of June, 1842, was color of title, and it was regularly transmitted to the appellee. Any instrument having a grantor and a grantee, and containing a description of the lands intended to be conveyed, and apt words for their conveyance, gives color of title to the lands described. Such an instrument purports to be a conveyance of the title, and because it does not, for some reason, have that effect, it passes only color or the semblance of a title. It makes no difference whether the instrument fails to pass an absolute title, because the grantor had none to convey, or had no authority, in law or in fact, to convey one, or whether such want of authority appears on the face of the instrument, or aliunde. The instrument fails to pass an absolute title, for the reason that the grantor was not possessed of some one or more of these requisites, -and, therefore, it gives the semblance or color only of what its effect would be if they were not wanting. The law presumes that all men act in good faith, until there is some evidence to the contrary; and in the absence of evidence color of title is presumed to have been so acquired. The evidence satisfactorily established the payment of taxes assessed in the years 1842 to 1852 inclusive, and that the lands were vacant and unoccupied. The taxes were paid by the persons who had the color of title, when the payments were respectively made, or by their authorized agents. As the defendant was in possession when the suit was brought, these facts barred the appellant’s right of recovery.
On the trial, a juror was challenged because he had been sworn and had served as a grand juror within a year prior to that time. The challenge should have been allowed.
This precise question was under consideration in Bissell v. Ryan, 23 Ill. 566, and the conclusive reasons there given for the exclusion of the juror render others unnecessary.
The court below erred in not excluding the juror, and on this ground the judgment is reversed and the cause remanded.
Judgment reversed.
