53 Ill. 35 | Ill. | 1869
delivered the opinion of the Court:
The defendant in this case was clearly protected by the statute of limitations.' He showed possession and payment of taxes for seven years under color of title. The fact that the plaintiff’s title was recorded did not interfere-with the running of the statute! ' This has several times been decided by this court. Chickering v. Failes, 26 Ill. 520 ; Cook v. Norton, 43 ib. 394. Neither did the deed of trust from the defendant to Hamlin, which was subsequently released upon payment of the secured debt, stop the running of the statute, by severing the color of title from the payment of taxes. • The deed of trust was the same thing in substance as a' mortgage with, power .of, sale,-, and the ,possessionrwas still held.-by.defendant and the taxes still paid by him under this.title. As has been repeatedly, held'by. this, court,, the taxes under this statute may be paid either, by mortgagor or mortgagee, trustee or cestui que trust. Cofield v. Furry, 9 Ill. 185; Lyon v. Kain, 47 ib. 200.The questien;;,is, under • what, title;were they paid?. .,
It is also; objected, that-tbe plaintiff was. within- the rebel lines during the war, from.the year-1862 until its-,termination, and that the operation of the statute-of-.limitations was. suspended during that period. The record shows possession and payment, of .taxes for seven years, without counting the period of the defendant’s absence, in.;the rebel States.:.-But apart from.that, the plaintiff, was a resident an.d citizen of Maryland-at the commenqement. of the war,. af- which time. the. adverse possession.and payment of taxes had commenced, and we can never admit.that,.by voluntarily going-within the. rebellines and remaining there",■ he. suspended, as to himself-the operation of our laws • enacted for. the purpose of. protecting ■ the occupants of lands under claim an.d color-of title.- -It is true, the Supreme Court of the United States . has decided, in Hauger v. Abbott, 6 Wallace 532, .that the statute of limitations of the State of Arkansas did not run during the war so as to bar a debt due to a citizen of Hew Hampshire, and the decision is placed upon the broad ground that the rebel States were belligerents, and that the modern and better doctrine is, that since an enemy creditor cannot sue during the war, the period of his disability shall not be counted against him after the return of peace. But the court say, in giving their opinion, that, in such cases, “neither laches nor fraud can be imputed,” and that the ability of - the creditor to sue has been suspended “without any fault on his part, but under circumstances which make if his duty1 to-abstain from' any-such attempt.” The'court further say, “ his remedy is suspended by the acts of the two governments and by the law of nations not applicable at the date of the contract,-but which comes into operation in consequence of an event over which he has no control.”
It is obvious that this has no application to the case at bar.In the" one case the plaintiff is placed under" á disability by events over which he has no control. In the case at barj the plaintiff has voluntarily placed himself under disability, so far as he was under a disability at all, by withdrawing ’ from his own- State, and " betaking" himself to the territory of "the enemy. If he went there to join the public enemy, that would be an extraordinary reason for claiming that the operad tion of our laws should be suspended in order that he may lose no rights. If he went there on legitimate business, or -ás a loyal citizen, our courts would never have been closed against his suit. But" whatever his1 motive ■ or his business, his act was purely voluntary, and that consideration disposes of his claim that the statuté o'f limitations ceased to run.
Neither did the recovery of a judgment” in ejectment by Loomis affect in any manner the running of the statute. The defendant bought in the title of Loomis, and his "own "color of title and possession under it were not disturbed by the mere' judgment in ejectment. - ' •
The bar of the statute must be held complete. -
Judgment affirmed.
