30 N.E.2d 666 | Ill. | 1940
Appellant N.C. Gochenour began this suit in the circuit court of Fayette county to quiet the title to the southeast quarter (1/4) of the southeast quarter (1/4) of the southwest quarter (1/4) of section twenty-nine (29) township eight (8) located in said county. Nellie Logsdon, the widow of Joseph Edward Logsdon, and her six minor children, the heirs-at-law of said decedent, were made parties defendant. They interposed the defense of a limitation title and filed a counter-claim praying that the title be quieted in them. Nellie Logsdon had executed an oil and gas lease on her undivided one-third to E.P. Anderson and he joined *141 in the counter-claim. Defendant Gussie Grandfield defended against appellant's complaint and the Logsdon counter-claim by claiming a limitation title. He also filed a counter-claim seeking to establish the title in him. The Carter Oil and Gas Company, holders of an oil and gas lease from Grandfield, answered the complaint and counter-claim and supported Grandfield's claim of title. After a hearing before the court appellant's complaint and Grandfield's counterclaim were dismissed for want of equity. The title was decreed vested as follows: An undivided one-third to Nellie Logsdon, subject to the Anderson oil and gas lease, and the other undivided two-thirds to the six minor defendants, the heirs-at-law of Joseph Edward Logsdon, each of said children taking an undivided one-ninth.
Appellant perfected an appeal to this court. Grandfield filed a notice of cross-appeal but has not submitted any briefs and therefore his interest and those of his lessee, the Carter Oil Company, are settled and determined by the decree of the trial court.
The pertinent conveyances in appellant's chain of title are as follows: In 1884, B.F. Johnson and P.M. Johnson acquired title to the tract in question holding in a connected chain from the government. July 8, 1912, P.M. Johnson and wife, and the executors of the will of Benjamin F. Johnson, deceased, conveyed by quitclaim deed to appellant. These deeds were filed for record September 20, 1912. The evidence shows that neither the Johnsons nor appellant paid any taxes on the land from 1900 to January 1, 1940, except that March 18, 1939, appellant paid the taxes due for the current year. Such payment was made subsequent to the institution of this suit. Appellant did not enter into possession under his deed until August, 1938, a few days prior to the beginning of this suit.
Appellees' defenses and counter-claims are based on limitation titles claimed under sections 1, 6 and 7 of the Limitation act. (Ill. Rev. Stat. 1939, chap. 83, pars. 1, 6, 7.) *142 They also pleaded laches in bar of appellant's claim. In this court appellees abandon any claim of a limitation title by twenty years' adverse possession under section 1. The view taken in reference to the limitation title claimed under section 6 makes it unnecessary to consider appellees' claim of a limitation title under section 7 or the defense of laches.
The chain of title in which appellees claim, begins with a tax deed issued to A.H. Bachman in 1899. It was issued upon an admittedly defective affidavit. In 1912, William Ireland, by connected chain, became the holder of the Bachman title. His deed was filed for record January 30, 1913. The conveyance to Ireland was by a general statutory form of warranty deed. It was a deed between parties competent to make and receive it and in apt terms purported to convey the land in question by definite description. It constituted color of title. (Bolden v. Sherman,
Before a title amounting only to color of title obtained in good faith can ripen into a conclusive title under section 6 of the Statute of Limitations, it is incumbent upon the one asserting such title to prove that following the *143
acquisition of the color of title there was actual possession and payment of taxes by or on behalf of the party holding such title for seven successive years. (Wright v. Stice,
Prior to 1912, the premises were vacant and unoccupied. It was broken timber land without fences or improvements of any kind. Ireland testified that soon after he acquired his deed in 1912, he cut timber from the land and had it made into ties which he sold. Subsequently he contracted to sell it to Hi Badman on time payments. The only evidence of the terms of the contract is in the verbal testimony of Ireland. The date of the contract or the period in which payment was to be made is not shown by the evidence but it is clear Badman went into possession with Ireland's consent under the contract of sale. Badman erected a log house, barn, chickenhouse and cut the timber and brush from two or three small patches and cultivated them. Ireland's testimony is that the contract was made with Badman soon after he acquired his deed and that Badman's possession followed immediately after making of the contract. John Tucker, a witness who lived near the land and had known it since 1914, testified Badman erected the house in 1914 or 1915. Badman did not pay the contract price and M.E. Sides obtained his interest, completed the payments to Ireland and acquired a deed from him September 6, 1918. The exact date Mrs. Sides entered into the possession of the property is not shown, further than that she stated she entered into possession in 1918. She is corroborated on the date of entry by the testimony of Ireland who testified she entered when Badman left. John Tucker also testified as to her occupancy in 1918. February 12, 1920, she conveyed the property to her son John Sides and removed from the premises. February 12, 1922, John Sides and wife conveyed *144 to Joseph Edward Logsdon, under whom appellees claim. It does not appear John Sides ever resided upon the premises during his ownership but George Dial, an uncle of Sides, occupied it as a residence for one year following John Sides' acquisition of the property. After his removal Charles Sides, a brother of John, occupied it as a home in 1921 for a couple of months with the consent of his brother John. After Joseph Edward Logsdon acquired the title in February, 1922, his brother Elmer Logsdon moved into the house and occupied the premises with his consent. Elmer Logsdon testified that he resided there "something like a year." The grantee, Joseph Edward Logsdon and family took up a residence in the property in November, 1925, and continued to reside there until July, 1926.
It appears that these premises were practically unproductive, there being only two or three small patches that were suitable for cultivation. It was unfenced and not suitable for grazing. There was no well or other means of obtaining water for family use on the land. Water had to be carried a quarter of a mile for family purposes. The buildings were of primitive structure, lacking in comfort and conveniences.
The possession contemplated by section 6 of the Limitation act is an open, notorious, adverse, actual, visible and exclusive possession. (Wright v. Stice, supra; McMahill v. Torrence,
Badman's possession having started not later than the end of the year 1915, the seven successive years necessary to complete title ended at the end of the year 1922. The actual possession necessary under the statute must be determined in view of the circumstances and conditions of the property and the use made of it. In Burns v. Curran,
The evidence introduced to show payment of taxes for a period of seven successive years consisted in part of the oral testimony of persons who held the title for part of said period and the records of the county clerk's office showing the fact of payment and by whom made. The statute does not provide any particular method of proving payment of taxes. Under the seven-year statute it leaves *146
the proof to be made in any legitimate mode. The evidence offered on the question should be clear, positive and free from suspicion in order to satisfactorily show that the taxes have been paid.(Meyer v. Jopson,
Appellees established a limitation title in them, and the court did not err in dismissing appellant's complaint for want of equity and decreeing the title to be vested in appellees.
Decree affirmed. *147