| Ill. | Jan 15, 1868
delivered the opinion of the Court:
On the 1st of September, 1845, FTevins and Alstine, then holding a tax title to the premises in controversy, conveyed it, together with then' title to various other tracts, to Lucius Kingman. The money for the purchase was furnished by John Tillson, and Kingman took the title as his trustee, under an agreement to keep the taxes paid, sell the lands, and account to Tillson for the proceeds, after deducting taxes, commissions and. other charges. Kingman conveyed to Ilinchman & Loomis, in 1856, and they to the defendant in this suit, in 1858. This, together with seven years payment of taxes by Kingman, from 1846 to 1853, while the land was unoccupied, was the title relied upon by the defendant in this suit in the circuit court. The court held that it did not create a bar under the statute of limitations, and gave judgment for the plaintiff.
It is urged by the counsel of appellee that the payment of taxes and the color of title, did not concur, and the case of Dunlap v. Dougherty, 20 Ill., 400, is cited as in point. In that case, the taxes for two years out of the seven, were paid by Folwell, who claimed under contract of purchase, the land being unoccupied. It does not appear that he was bound to pay by the terms of his purchase, or that he paid in behalf of his vendor, or as agent. He did not receive his deed until the lapse of two years after his first payment. The court held that while such a payment would have been good under the eighth section of chapter 24, of the Revised Statutes, it was not g’ood under the ninth, and the distinction between the sections has been recognized in several subsequent cases. But in the case of Chickering v. Failes, 26 Ill., 521, the court say : “ To have rendered the payment of taxes in the name of the executors available, it should have appeared that the will vested in them some title, or, at least, required them to pay the taxes until the estate was settled.” This was said in reference to the ninth section, and when the same case was again before the court, as reported in 38 Ill., 345, the court, speaking still in reference to the ninth section, say, the payment may be made either by the trustee or cestui que trust, “ so that the person making the payment be connected with the color of title, and make the payment under that title.” The case of Dunlap v. Dougherty must, therefore, be regarded as an extreme case.
The case before us is, in principle, more like that of Chicliering v. Failes. It is, indeed, a plainer case than that, but, under the rule laid down in that case, payment, either by Kingman or Tillson, was good. In either case, the payment -would be under the legal title held by Kingman in trust for Tillson. But, although the receipts for three years were in the name of Tillson, the evidence of Kingman shows that he was a land agent in Quincy, and that the taxes were, in fact, paid every year, either by himself in person, or by agents sent by him. He furnished the money and charged it to Tillson, without reference to the state of the accounts between them. He held the land as trustee, and paid the taxes in that capacity, and there was thus a concurrence of title and payment of taxes. It was immaterial in whose name the receipt was given. The taxes were, in fact, paid directly by Kingman, but indirectly by Tillson, to whom they were ultimately charged in the accounts of the trustee, and, in either point of view, they were paid in virtue of the title held by one for the use of the other. It was the same thing as if a guardian to whom land had been devised in trust for his ward, should pay the taxes and charge them to his ward’s account. It would be immaterial whether the receipt was in the name of the guardian or ward. The title and payment of taxes would concur. On the evidence in this record, the judgment should have been for the defendant in the circuit court.
Judgment reversed.