| Ill. | Jun 20, 1892
delivered the opinion of the Court:
This is a bill in chancery, filed in the circuit court of Cook county by appellees, Charles M. Smith and others, against Henry H. Gage, the appellant. It is alleged in the bill that appellees are the owners of lots 20 and .21, in block 7, and lots 25 and 26, in block 15, in Maplewood, in said county, and are in the open, actual and exclusive possession of all of said lots. The object of the bill is to remove certain tax deeds for said.lots, held by appellant, as clouds upon the title of" appellees.
The defense interposed by appellant to the bill is by way of a plea, in and by which plea he sets out each of the three tax deeds mentioned in the bill, and claims that they were each color of title in him, by the terms of which, as recited in each deed, a title in fee had been conveyed to him. He sets out in the plea that he received each of said deeds in good faith, and that each of said deeds was made in good faith, and that after obtaining each of said deeds he had paid all the taxes legally assessed upon said lots and land for seven successive years, while said lots and land were vacant and unoccupied, and that by virtue of such payment of taxes upon such vacant and unoccupied lots and land, under such color of title, made in good faith, he is entitled to 'have it deemed and adjudged that he is the owner of said lots and land according to the extent and purport of his paper title, which is a title in fee; and he pleads in said plea the statute, and that by section 7 of chapter 83 of the Revised Statutes of Illinois of 1874 it is provided, that whenever a person having color of title, made in good faith, to vacant and unoccupied land, shall pay all taxes legally assessed thereon for seven successive years, he shall be deemed and adjudged to be the legal owner of said vacant and unoccupied land, to the extent and according to the purport of his paper title. This plea was set down for argument as to its sufficiency, and the circuit court refused to allow the plea, and overruled it, and appellant standing by said plea and refusing to answer the bill, the said court rendered a final decree, setting aside, upon equitable terms, the tax deeds, upon the ground they were clouds upon the title of appellees.
It is to be noted that it is not alleged in the plea that appellant, after, he obtained his color of title and paid taxes for seven successive years, got into actual possession of the lots. It is urged, however, that there is no requirement in the statute directing that the holder of the color of title should reduce the land to possession before he can have the benefit of the statute. It is unnecessary at this late day to enter into a discussion of section 7 of the present Limitation act. Whatever may be the literal import of the words used in the section, yet it is only as a limitation law that it can constitutionally become operative, and statutes of limitation work upon the basis of a possession. When the color of title made in good! faith, and the payment of taxes for seven successive years on vacant and unoccupied land, have become united with the actual possession of the holder of such color of title, then, .and not until then, the bar of said section of the statute becomes complete, operative and available against the holders of the true title. This has long been the law of this State and a settled rule of property. Newland v. Marsh, 19 Ill. 385; Paullin v. Hale, 40 id. 277; McCagg v. Heacock, 42 id. 153; Hale v. Gladfelder, 52 id. 91; Meacham v. Winstanly, 77 id. 269; Whitney v. Stevens, id. 585; McDuffee v. Sinnott, 119 id. 450; Gage v. Hampton, 127 id. 87.
It is next urged that there is nothing in the record to show, or tending to show, that appellant had not reduced the property to possession after he had paid the taxes thereon for seven consecutive years. Appellees, by the averments of their bill of complaint, show possession, and make a good case for the interposition of a court of equity. Appellant admits the case stated by the bill, but interposes a plea in which he insists that the suit shall be held to be barred. He seeks to avail in his plea of the bar of the statute. It therefore devolves upon him to state such facts in his plea as show that the bar of the statute has become complete and operative. In Cheney v. Patton et al. 134 Ill. 422" date_filed="1890-11-01" court="Ill." case_name="Cheney v. Patton">134 Ill. 422, we said: “The rule applicable to pleas in equity is, that the same strictness and exactness are required in them that are required in pleas at law,— if not in matters of form, at least in matters of substance. One requisite of such plea is, that it should clearly and distinctly aver all the facts necessary to render it a complete equitable defense to the ease made by the bill, so far as the plea extends. Where its allegations, being taken as true, do not, so far as it purports to go, make out a full and complete defense, or where the necessary facts are to be gathered by inference, alone, it will not be sustained. It must be specific and distinct, and must be perfect in itself, so that, if true, it will make an end of the case, or of that part of the case to which it applies,” — and Story’s Equity. Pleading, secs. 658, 665, 652, 2 Daniell’s Ch. 103, Allen V. Randolph, 4 Johns. Ch. 693" date_filed="1820-12-28" court="None" case_name="Allen v. Randolph">4 Johns. Ch. 693, and Puterbaugh’s PL and Pr. Ch. 137, were cited as authority for what was thus said. The doctrine announced in. that ease is as applicable here as it was there. It can not be presumed in favor of the pleader that he was in the actual possession of the lots prior.to the open, actual and exclusive possession of all of said lots that is alleged in the bill of complaint. The presumption, on the other hand, must be indulged that appellant has stated his case in his plea as strongly and as favorably for himself as the facts will justify. It must be regarded as an admitted fact of the ease, that appellant had not reduced the property to possession prior to the possession of appellees. This being so, and the law being that the acquisition of possession by the party having color of title prior to actual possession being taken by the holder of the paramount title, is essential to the existence of the bar, it necessarily follows that the plea of appellant is bad, and that there -was no error in overruling it, or in rendering the decree that was entered.
The decree of the circuit court is affirmed.
Decree affirmed.