20 Ill. 227 | Ill. | 1858
This was an action of ejectment, commenced in the Knox Circuit Court, by Darst against Marshall, at the September term, 1855. On a trial by the court, by consent, without the intervention of a jury, the plaintiff introduced in evidence a regular chain of title from the United States to himself. Defendant admitted possession. The defendant introduced in evidence a deed from the Auditor of State, under sale of January, 1828, dated July 5th, 1880, to John Tilson, Jr.; a deed from Tilson to Moses Allen ; a deed from Allen to Charles P. Moulton and others; a deed from Moulton and others to Lemuel Lamb and Thomas Dunlap, for the premises in dispute. Also, a deed from Lamb and Dunlap to himself, dated the 1st of November, 1841. And a copy of an agreement for a deed from the Illinois Land Company to defendant, dated July 15th, 1841, by which the Land Company bound themselves to convey the land to defendant upon the payment of the purchase money as therein specified; the last payment of which fell due on the 1st day of June, 1844. The defendant agreed by this contract that, upon the delivery of the deed, he would repay all taxes assessed on the land after the 15th of June, 1841, and interest thereon until paid. On the back of this agreement were receipts of purchase money: one for $51.77, June 28,1841, signed J. Tilson, Jr., for Chas. Morton ; one for $19.25, June 27,1842, signed J. Tilson, Jun., agent for C. Morton; one for $205, July 3,1843, signed Lucius Kingman, for the owner, J. R. Randolph; and another for $110, the 13th July, 1843, signed, Lucius Kingman, for the owner, J. R. Randolph. The defendant read a tax receipt for this land for the taxes of 1841, paid by J. Tilson, Jr., dated the 25th May, 1842; one for taxes of 1842, paid by Lucius Kingman; one for 1843, paid by John R. Randolph. Kingman testified that Lamb and Dunlap were the trustees for the Illinois Land Company. The Company owed Tilson, and Tilson, as their agent, sold the land to defendant. That in April or May, 1842, the contract was given to Tilson as money, and the taxes of 1841 were paid in his name for himself. He afterwards gave the contract to Robert Tilson as cash, find he in like manner gave it to John R. Randolph as so much cash, and that the taxes of 1842 were paid by Kingman for the use of Randolph; the taxes of 1843 were paid by witness in the name of Randolph, for him, and so charged on the books. The contract, the deed to Marshall, and tax receipts, were all left with witness by John Tilson, Jr., Bobert Tilson, and John B. Bandolph. The Tilsons and Eandolph only claimed the land, as above stated, under the title of the Land Company sold to Marshall, and they paid the taxes as such owners under that sale and contract, in place of the Land Company. Defendant then read in evidence tax receipts to himself for the years 1844,1845,1846, 1847, and 1848. The evidence shows that in 1835 defendant went into the actual possession of the land, and had resided on it since that time. That in 1835 he built a cabin, made rails and fenced a small field. In 1836 he broke up four or five acres and planted an orchard, and used the place as his own. He continued the improvements until sixty or eighty acres xyere inclosed, besides the orchard; has his barn on the land, and the whole inclosure was made as early as in 1842 or 1843. The barn is a large one, and was built in 1841. Defendant then introduced in evidence a deed from Peter Franc, sheriff of Knox county, to Abraham D. Stewarts under tax sale of 1840, for tax of 1839, dated November 15th, 1842, for the land in question. Also, a deed from Stewarts to Charles Morton, dated May 27th, 1842; and a deed from Morton to defendant, dated 15th January, 1845. On this evidence the court found for the defendant, and rendered judgment in his favor. From which plaintiff appeals.
In giving a construction to the 8th sec. of the 24th chap., R. S. 1845, in the case of Cofield v. Furry, 19 Ill. R. 183, this court say: “ The true question in such cases is, under what title were the taxes paid ? If they were paid under no claim and color, or under a title adverse to that to which they are sought to be applied, the payment is unavailing. But if paid by the tenant, his payment, like his possession, is, in legal effect, the act of the landlord. If payment is made by the cestui que trust, the effect is the same as if made by the trustee, for the two interests united make the estate, or the legal and equitable title to the land, standing together, and not in hostility to each other.”
In the case under consideration, the defendant held the actual possession of the premises, under a contract which he entered into with the_ agent of Lamb and Dunlap, made the 15th of June, 1841. And, whatever the authority of the agent might have been, they executed a deed of this land, in pursuance of this agreement, on the 1ft day of November following, which was not delivered until the purchase money was paid. They undoubtedly, by the execution of that deed, fully ratified the act of their agent in this sale. The defendant was, then, in possession under this title, and so continued for some years after his purchase, as also after the ratification of it by Lamb and Dunlap. This was clearly claim and color of title. The defendant paid the taxes for five years, about which there is no dispute. But it is insisted that the payment by Tilson and by Randolph, and by Kingman for Randolph, for each of the three years which completed the seven years, was not available. The evidence shows that Lamb and Dunlap assigned the contract with defendant to Tilson as a payment of money. He thereby succeeded to all their rights under the contract, and Randolph, by assignment, succeeded to Tilson’s rights, in the same manner. And these taxes were paid by them while they held this interest. They paid them under it, and to protect it from sale. They did not pay the taxes claiming under no title, nor did they pay them under a title adverse to this, but as connected with it by their assignment of- the contract. It can make no difference whether the taxes are paid by the vendor or by the vendee, while the contract of sale remains unexecuted ; nor can it make any difference whether by the assignee of the vendor or of the vendee; for, whether paid by one or another of them, it would be equally under the same claim and color of title. Any other construction would defeat the obvious intention of the legislature, and fail to prevent the mischief intended to be remedied.
The contract of defendant for the purchase of this land, provided that he would refund to the persons of whom he purchased, all taxes that should accrue after the purchase and which they should pay. This was, then, an authority to the vendor, or his assigns, to pay the taxes for him. - And when they made those payments, they did so as his agents ; and what a person does by another, he does by himself. Upon this principle, the payments thus made are equally availing as the payments made by himself, and formed a part of the seven years’ payment of taxes, concurring with his seven years’ possession.
Judgment affirmed.
