143 Ill. 271 | Ill. | 1892
Lead Opinion
delivered the opinion of the Court:
It is urged in support of the decree, that the bill being a bill of review, is technically insufficient, in that it fails to set out a complete copy of the record of the proceedings sought to be reviewed, and therefore that the decree dismissing the bill for want of equity may be sustained on that-ground. The defendants in error thus seek to apply to the case the rule laid down in Kuttner v. Haines, 135 Ill. 382, and the cases there cited. It seems only necessary to say, that no such point was made in the court below, but on the contrary, that any defect in the hill of that character was intended to bo waived, or rather cured, by the express stipulation of the parties. Their stipulation was, that all the proceedings in the matter sought to be reviewed were substantially set forth in the bill, and that no record proof thereof should be required of either party. This is clearly tantamount to an admission that, for all the purposes of this suit, said proceedings were substantially and sufficiently set forth in the bill, and that the allegations of the bill should be accepted as sufficient proof of their nature and effect. In the face of such an admission, it can not be insisted now, that the bill is defective in this respect.
Divesting the case of all considerations of a merely technical character, the main question to be considered is, whether the facts shown by the record as now presented, establish title to the lands in question in the heirs of Borneo Lewis, deceased, paramount to that of the complainants in the decree sought to be reviewed.
It may be observed that as to an undivided one-third interest in said lands the heirs of said Lewis make no claim or to say the least, the evidence lays no foundation for such claim. The collateral heirs of Lewis, at the time of his death, were, a surviving brother and the children of two brothers then deceased. The descendants of those, two brothers are the, complainants here, and their claim can in no event cover more than an undivided two-thirds of said land. The interest, if any, which passed by descent to said surviving brother, became vested by devise in Jane N. Lewis in 1883, and as she had long previously conveyed said lands by a deed which purported to-convey the fee, with full covenants of warranty, her after acquired title, by force of the doctrine of estoppel as well as by the express provisions of our statute, enured to the benefit of her grantees, and became vested in Martha E. Pleasants and William G-. Bandall, who, through mesne conveyances, had become the owners of the title conveyed by said warranty deed.
The contention is, that by the will of Borneo Lewis, deceased, Jane N. Lewis, his widow, became vested with only a life estate in said lands, and that, as the testator left no descendants, the reversion passed, either as a vested or contingent estate, to his collateral heirs, through whom the present complainants claim title; that Jane N. Lewis, therefore, by her deed to the remote grantors of the complainants in the original decree, conveyed only a life estate, and that, upon her death, the reversioners became the owners of the fee. The-precise force to be given to the language of the devise to Jane N. Lewis is by no means clear. Said devise is as follows:
“I further give and devise to my dearly beloved wife, Jane N. Lewis, and to the heirs of her body, my houses and lots in the town of Oxford, Butler county, Ohio, and all the residue of my lands in the States of Indiana and Illinois, and the rest, residue and remainder of my personal estate, goods and chattels, of every kind and description whatsoever, to be equally divided between them, share and share alike.”
If the ihtentiom of the testator was merely to devise said lands to Jane N. Lewis and the heirs'of her body, the devise would, at common law, have created an estate tail general, leaving in the heirs at law of the devisor the reversion in case of an entire failure of issue. But under the provisions of the sixth section of our statute in relation to Conveyances, such devise would vest in the devisee only a life estate, with remainder in fee to the heirs of her body, and leaving the reversion, in case of an entire failure of issue, in the heirs at law of the devisor. See Blair v. Vanblarcum, 71 Ill. 290 ; Fraser v. Supervisors, etc. 74 id. 282; Cooper v. Cooper, 76 id. 57.
But it is claimed that the language of the will indicates an intention to devise said lands to Jane N. Lewis and the heirs of her body, to take, not in succession, but as a class, such interpretation of the will being based mainly upon the concluding words of the paragraph above quoted which provides, as is insisted, that the lands devised shall be divided, share and share alike, among the beneficiaries therein named, viz., Mrs. Lewis and the heirs of her body. It is argued that the devise to said beneficiaries as a class is in fee, and as Mrs. Lewis is a member of said class, and the only one in being, she took the entire estate devised in fee.
As we view the case, however, it will not be necessary for us to construe the will, so as to determine the precise estate thereby devised to Mrs. Lewis, as in our opinion the decision of the case should rest on another ground not necessarily involving that question. It is admitted that the complainants in the original decree and their grantors have been in possession of said lands for over twenty-five years under the deeds from Mrs. Lewis, and that during that time they have paid all taxes assessed thereon, and the question is whether, under these circumstances, they have brought themselves within the provisions of what is now section six of our statute of limitations. That section is as follows :
“Every person in the actual possession of lands and tenements, under claim and color of title, made in good faith, and who shall for seven successive years, continue such possession, and shall also, during said time, pay all taxes legally assessed on such lands or tenements, shall be held and adjudged to be the legal owner of such lands or tenements, to the extent and according to the purport of his or her paper title. All persons holding under such possession, by purchase, devise or descent, before such seven years shall have expired, and who shall continue such possession, and continue to pay the taxes as aforesaid, so as to complete the possession and payment of taxes for the term aforesaid, shall be entitled to the benefit of this section.”
It is admitted that on the 25th day of July, 1856, Mrs. Lewis, by her deeds purporting to convey the fee, and containing full covenants of warranty, conveyed a portion of said lands to the remote grantor of Martha E. Pleasants, and the residue to the remote grantor of William G. Ptandall, and that said Pleasants and Eandall have a complete chain of title to said lands, under deeds with full covenants of warranty and properly recorded, from said remote grantors, and that said lands have been actually occupied by them and their grantors from the date of said conveyances by Mrs. Lewis, for over twenty-five years, and that during that time, they and their grantors have severally paid all taxes assessed on said lands.
The question is, whether said Pleasants and Eandall are in a position to invoke the protection of the statute above cited. It is claimed on behalf of the heirs of Eomeo Lewis, deceased, that Mrs. Lewis’ interest in said lands at the time she made said conveyances was only an estate for life, the remainder being in said heirs, so that her grantees took only an estáte for her life, and that their possession was therefore not adverse but in subordination to the title of the reversioners, and was not such a possession as could call into operation the statute of limitations. There can be no doubt that the deeds executed by Mrs. Lewis, purporting as they did to convey an estate in fee, constituted of themselves color of title in her grantees. As said in Brooks v. Bruyn, 35 Ill. 392: “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 descrihed. 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 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 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.” See also, Cook v. Norton, 43 Ill. 391; Elston v. Ken nicott, 46 id. 187; Bride v. Watt, 23 id. 507; Holloway v Clark, 27 id. 483; Morrison v. Norman, 47 id. 477; Hinkley v. Greene, 52 id. 225; Yoakum v. Harrison, 85 id. 202.
If the only title or apparent title of Mrs. Lewis to the lands in question at the time of the execution by her of said conveyances, had been that derived from the will of her husband, it might perhaps be questionable whether the possession of her grantees would have been adverse to the owners of the reversion, so as to bar the latter under the seven years statute of limitation. That question however need not be decided, since it is admitted that several years prior to the date of said conveyances, a tax deed, purporting to convey said lands to Mrs. Lewis in fee was executed to her by the proper officer of Woodford county, and that she was the owner of the title or apparent title thus vested in her at the time she made said conveyances. There can be no doubt, we think, that said tax deed constituted color of title, in favor at least of her grantees.
It is contended that said tax deed can not be held to be color of title because it is not shown to have been executed by virtue of a tax sale made in pursuance of a judgment of any court, such contention being based upon the evidence adduced at the hearing tending to show that there is not now any record of such judgment. This objection can not be sustained. Said tax deed, so far as appears and so far as is claimed by counsel, was regular on its face and purported to convey the fee, and that is all that is necessary to constitute it color of title. Such was the rule laid down in Holloway v. Clark,’supra, where, after holding that a tax deed regular on its face was color of title, it was said; “Nor is a person relying upon a clerk’s or sheriff’s deed, on a tax sale, as has been repeatedly held by this court, bound to see that all the prerequisites of the law have been answered, before he can rely upon it as claim and color of title. If it appears on its face to be regular, that will suffice. When it so appears, the party is not required to go beyond the deed to see whether it actually passes the title or is void. If it were otherwise the statute would be useless.” . See also, Stubblefield v. Borders, 92 Ill. 279. In Chickering v. Failes, 26 Ill. 507, it was held that an auditor’s deed to a purchaser of land at a tax sale, although the law under which the sale was made was unconstitutional and the sale void, yet, in the hands of a purchaser, unless charged with bad faith, is color of title; and may be relied upon as a bar, when the other requirements of the statute are complied with.
But it is further objected that, at the time the lands in question were sold for taxes, and at the time of the assignment to Mrs. Lewis of the certificate of purchase, she was tenant of said lands for life, and-as such was charged with the payment of taxes, and consequently that the purchase of said lands at the tax sale by her brother-in-law and the subsequent -assignment of the certificate of purchase by him to her, constituted in law only a mode of payment of the taxes by her, .and therefore that the tax deed purporting to convey said lands to her should be held to be inoperative and void.
It can not be doubted that said deed constituted color of title in Mrs. Lewis, since it purported on its face to convey to her the fee. The circumstances above referred to would doubtless be evidence, as against her, of bad faith in acquiring such color of title. But her want of good faith can not be imputed to her grantees nor can it in any way affect their -rights, so long as it is shown that when they acquired from her their title or color of title, they had no knowledge or notice whatever of any of the facts from which bad faith on her part -may be implied. The title or semblance of title vested in Mrs. Lewis by said tax deed passed to and became vested in them by her conveyances, and so far as they were concerned, such .claim and color of title were made and acquired in good faith. Such claim and color of title being to the fee, their possession under it was adverse to every other claimant, and so was adverse to the heirs of Borneo Lewis.
We are of the opinion that said Pleasants and Bandall, the complainants in the original decree, having, with their respective grantors, been in possession of said lands, under claim and color of title, made in good faith, for several times the period prescribed by the statute, and having during all that time paid all taxes assessed on said lands, were properly held by the court to be the owners of said lands, to the extent and according to their paper titles, that is to say, in fee simple. Such being the case, the decree dismissing the present bill was clearly right, and must be affirmed.
Decree affirmed.
Rehearing
Subsequently, upon an application for rehearing, the following opinion was filed:
The counsel for the appellants, in their petition for a rehearing, press upon our attention the rule that the Statute of Limitations has no application to estates of reversion, until after the termination of the precedent estate, and they seek to draw therefrom the conclusion that, as the appellants’ estate was a reversion after the life estate of Jane Ü. Lewis, the statute could not commence to run, as against them, until the death of the life tenant. If the appellees and their immediate and remote grantors holding claim and color of title under the conveyance from Jane N. Lewis were chargeable with either actual or constructive notice of the appellants’ estate in reversion, there would doubtless be great force in this contention. But, as we understand the record, there is no evidence tending to charge the appellees or their grantors with such notice, at least until the statute had completely run in their favor. They took from Mrs. Lewis a deed purporting to convey the fee, and having no notice of the appellants’ reversion, the principle for which counsel contend can not be invoked. This is in accordance with the rule laid down in Dougan v. Follett, 100 Ill. 581, where we held that if a party has had the undisputed possession of land under a warranty deed for more than seven years, and during that time has paid all taxes legally assessed thereon, without actual or constructive notice of a prior unrecorded deed creating a life estate with a remainder over to others who would otherwise be tenants in common with the one so in possession, such possession and payment of taxes will be a bar to a recovery by such remainder-man, even though seven years have not elapsed since the termination of the life estate.
Since our opinion in this case was filed, a number of cases involving other lands formerly owned by Borneo Lewis, deceased, and presenting the same identical questions raised by the record now before‘us, have been decided by the Supreme Court of the United States, that court reaching the same conclusion, and placing its decision upon substantially the same grounds, as we have done in this case. Lewis v. Bernhart, 145 U. S. 56. We see no reason for awarding a re-hearing, and it will accordingly be denied.
Rehearing denied.