| Ill. | Nov 1, 1897
delivered the opinion of the court:
Counsel for appellees charge, that J. H. Baker bought these premises at the sheriff’s sale for himself, instead of buying them for his ward as it was his duty to do. The proof clearly shows, that Fleming, to whom the sheriff’s deed was made, had no interest whatever in the premises and paid no money for them, but that he held the title for Baker. The conveyance of the property to Fleming, and the subsequent conveyance of it to Scott, Baker’s brother-in-law, and the conveyance from Scott back to Baker, and Baker’s testimony in the case, and all the circumstances, surrounding the transaction, go to show, that Baker’s intention originally was to defraud his ward and secure the property for himself. He paid nothing for the property, and yet he sold that portion of it bought at the sheriff’s sale, which is not involved in this suit, to third parties for about §1000. But this is a matter of which Camfield, the ward, alone had the right to complain. We find, that, on January 26, 1886, while the title to the property stood of record in Scott, Baker obtained a deed from his ward, William Grant Camfield, who had become of age at this time, and this deed recites, that Camfield relinquishes and discharges Baker, as former guardian, from all liability to him in every way, shape or form, that does or may in any way exist against him, as such guardian or otherwise. As the ward, the only party entitled to complain of the fraud, has thus executed to his guardian a full discharge and release tif all claims against him for any violation of duty, we cannot see, that the appellees aré entitled to set up such violation of duty in this proceeding to invalidate such title, as Baker may have obtained through said sheriff’s sale.
It also appears, that Baker permitted himself in November, 1889, and March, 1890, to be appointed trustee of the estate of James Elder, deceased; and that, as such trustee, he received a conveyance from his predecessor, Meeker, of these very lots. By such conveyance the adverse title, derived by William Elder through the deed from the Shorts, was conveyed to him, as trustee, at the very time when he was either the legal or equitable owner of the title, derived through the sheriff’s sale. He accepted the deed from Meeker subject to the contract, which Meeker had made for the sale of this very property to Mrs. Rachel Hancock, the mother of the present appellees. When, after his resignation as trustee, he conveyed this property to his successor in trust, Kirkwood, he certainly conveyed the title, obtained by William Elder from the Shorts, and also the title to the life estate, obtained by William Elder from Mrs. Preston. It would appear that a man, who thus acted as trustee for the Elder estate, holding the title adverse to that acquired under the sheriff’s sale, should be estopped from setting up any claim against Mrs. Hancock, the purchaser from his predecessor in the trust. Certainly, when Baker made his deed to his successor, Kirkwood, the record showed, that he Was himself the holder of the legal title, obtained through the sheriff’s sale. It appears, however, that, just before he was appointed trustee of the Elder estate, to-wit: on November 11, 1889, he and his wife conveyed these lots to Lou E. Phelps, his sister-in-law, which deed was not recorded until August 30, 1890. It is quite apparent, that there was no consideration for this deed to Lou E. Phelps, who conveyed the premises back to Baker on December 7, 1891. But when Baker as trustee deeded these premises to Kirkwood, as trustee, the legal title to the lots, as derived through the sheriff’s sale, was held by his sister-in-law, Miss Phelps, to whom he afterwards on June 2,1894, deeded nine-tenths of said lots, evidently for the purpose of bringing this partition suit. The title and the records were so managed and manipulated, that, while Baker held the title derived from the Shorts as trustee of the Elder estate, his sister-in-law held for him the legal title derived through the sheriff’s sale, although the equitable title thereto was undoubtedly in him, and until August 30, 1890, the records did not show that the legal title was not in him. While all these matters show a degree of trickery and unscrupulousness, which deserves the severest condemnation, yet we do not feel satisfied, that they furnish any sufficient ground for a court of equity to relieve the appellees. Without passing any opinion upon the effect of this conduct of Baker, except to express our astonishment, that a man, who belongs to a learned and honorable profession, should be guilty of such conduct, we pass to a consideration of the remaining ground of defense set up by the appellees here, the defendants below, in their answer.
The defendants below, who are the appellees here, invoke section 6 of the Statute of Limitations, as a defense, and claim that, before the present suit was commenced, they had been in possession of the premises for seven years, under claim and color of title made in good faith, and, during all that time, paid all the taxes legally assessed upon the premises. We are of the opinion, that the evidence sustains the defense thus made. The deed, executed on February 1, 1882, by Eliza E. Short and her husband to William Elder, conveying these premises, was good color of title. While William Elder held the title, he paid the taxes for the years 1882,1883, 1884 and 1885. In 1886 William Elder and Corbin conveyed the premises to J. Meeker. While Meeker held the title, he paid the taxes for the years 1886 and 1887. Meeker sold the premises to Rachel Hancock on March 1, 1888. Mrs. Hancock paid the taxes for 1888 and 1889. It thus appears that the taxes were paid for eight successive years, certainly for seven successive years, by E}der, Meeker and Rachel Hancock." The proof also shows that, from 1882 down to the death of Mrs. Hancock in the spring of 1891, Elder, Meeker and Mrs. Hancock were in possession of these premises. There were a dwelling house and one or more outhouses upon the lots. From 1882 up to the time of Mrs. Hancock’s purchase this dwelling house was occupied by tenants, holding under Elder and Meeker, and after her purchase she took possession herself.
It is said by appellant, that a title under the Limitation law cannot be acquired by the appellees, or their grantors, to the remainder in these premises, while the life estate was outstanding in Mrs. Preston. We do not think, that the fact of the existence of the life estate cuts any figure in this case, for the reason that, before William Elder obtained his deed from Eliza Short and her husband in February, 1882, he had previously thereto, to-wit: on July 9,1880, obtained a deed from Maria Preston and her husband, conveying to him Mrs. Preston’s life estate. By these two deeds the life estate had become merged in the fee, so that, when the deed was executed to Elder in February, 1882, he was the owner of the whole title, both life estate and remainder.
It is moreover claimed that, when Mrs. Hancock paid the taxes for 1888 and 1889, she did not have a deed from Meeker, but had only a bond or contract for a deed, and that, under the decisions of this court, an executory contract for a conveyance of title cannot be regarded as color of title. This position would have much force, if the color of title here insisted upon were merely the contract for a deed, executed by Meeker to Mrs. Hancock. But the color of title in this case is not such contract, but is the deed executed by the Shorts to Elder on February 1, 1882. If Elder, the grantor, under whom Mrs. Hancock held before the period of seven years was complete, had had nothing but a contract for a deed, the contention of the appellant would be sound. It appears, however, that Mrs. Hancock’s grantors, who sold to her before the period of seven years was complete, held under claim and color of title which was valid, and, therefore, inured to her benefit. This is apparent from the language of section 6 of the Limitation law, which provides as follows: “All persons holding under such possession, by purchase, devise or descent, before said 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.” (2 Starr & Our. Stat.—2d ed.—p. 2605). Mrs. Hancock held under the possession of Elder and Meeker by purchase before the seven years expired, and continued such possession, and continued to pay the taxes. This statute gives a purchaser during the running of the seven years the same rights, as the party who originally took possession and commenced the payment of taxes under claim and color of title. The rights, acquired by the original holder of the color of title, are continued to his purchaser for the balance of the seven years. There is nothing in the language of the statute to indicate, that the purchase must be manifested by a deed. A man, who sells a piece of land and receives all of the purchase money in cash, is undoubtedly obliged to give.a deed at once, but if the sale is made on time, he may prefer, instead of giving a deed and taking back a mortgage for the unpaid purchase money, to give a contract for a deed, the deed to be executed upon the full payment of all the purchase money. To hold that, under this statute, the evidence of the purchase must be the execution of a deed would be to hold, either that the purchase referred to by the statute is a purchase for all cash, or that the original holder of the color of title is bound to make a deed before he receives full payment for his property. The view, that the purchase need not necessarily be manifested by a deed, receives endorsement from the use of the word, “descent,” in the statute. The language is, that all persons, holding under such possession, by purchase, devise or “descent,’’etc., shall be entitled to the benefit of this section. If the party, holding under claim and color of title, commences the payment of taxes, and commences his possession of the land, and then dies before the seven years are complete, his heir, who takes by descent from him, is entitled to the benefit of the statute. And yet such heir has no deed as evidence of his interest in the land. His interest has come to him merely by operation of law on account of the death of the ancestor. “Where a person dies in possession of land and the possession devolves upon and is continued by his heirs, their possession is under color of title.” (1 Am. & Eng. Ency. of Law,—2d ed.—p. 850). Mrs. Hancock’s possession was not adverse to the possession of her grantors, Elder and Meeker, but was in subordination thereto. Her possession was that of her vendor, and she was entitled to rely upon the claim and color of title, under which her grantor, Elder, entered into possession of the premises. “The possession of lands under an executory contract of purchase is not adverse to the vendor so long as the purchase money is not paid.” (1 Am. & Eng. Ency. of Law,—-2d ed.—p. 799; 28 id.—1st ed.—p. 199).
In Cofield v. Furry, 19 Ill. 183" date_filed="1857-12-15" court="Ill." case_name="Cofield v. Furry">19 Ill. 183, one Parsons, in 1845, being in possession of land under claim and color of title made in good faith, mortgaged the same to one Ivans; the mortgage was foreclosed, and the land sold under foreclosure to Skinner on July 12, 1847; Parsons made an arrangement with Skinner to pay the mortgage and have a conveyance of the land from Skinner to him; on June 20,1849, Parsons, by arrangement of Vandruffs with Skinner that Skinner should convey to them, sold to Vandruffs, and surrendered possession to them; Skinner on January 14, 1851, executed a deed of the land to Vandruffs; Vandruffs on January 30,1852, conveyed the land to the defendant, who took possession and held the same; the record there showed the payment of all taxes assessed on the land for the seven years before the beginning of the suit, as follows: by Parsons for 1848; by Vandruffs for 1849, 1850 and 1851; and by the defendant for 1852, 1853, 1854 and 1855; the action was commenced in 1855. It will thus be noticed, that, in that case, the Vandruffs received no deed until January 14,1851, but paid the taxes for 1849 and 1850 under a mere arrangement for a sale of the property to them by Skinner. Under this state of facts we there said: “When the title of Parsons passed to Skinner by judicial sale, Parsons continued to hold under him, and in subservience to his title, or as purchaser,, and he and Vandruffs continued so to hold until the deed from Skinner to Vandruffs was executed; and whether Skinner is treated as a trustee, holding the legal title, and they as cestuis que trust, or as the landlord and they his tenants, the same result follows; for, in either case, the possession and payment of taxes were under the title, as it had before existed in Parsons, and would inure to the benefit of the defendant, who succeeded them, and to the title under which the taxes were paid.” It was furthermore held in this case, that the statute does not require the possession, under claim and color, to be continued in one person for the period of limitation, nor that the same person shall pay all the taxes for that period; and that “it is sufficient if the taxes for the seven years are paid under claim and color by those having or succeeding to the possession, held and continued under claim and color.” The same doctrine is also recognized in the case of Rigor v. Frye, 62 Ill. 507" date_filed="1872-01-15" court="Ill." case_name="Rigor v. Frye">62 Ill. 507, where it appeared that the appellant had no deed during the first four years of his possession, but only claimed to have a bond 'for a deed from one Clark; and it was there held that the appellant did not have color of title, because the onty title to the land claimed by Clark himself, under whom the appellant held, was a certificate of purchase at tax sale; and it was there said, that the appellant “did not claim any title to the land through any one who claimed to own it under a deed purporting to convey the title. * * * The appellant, therefore, had no color of title * * * nor did he hold any claim or color of title from any one who himself had color of title.”
A contrary rule is laid down in regard to the seventh section of the Limitation act, which has reference to vacant and unoccupied land. The language of section 6 is different from that of section 7. Not only is there no provision in section 7, such as is above quoted, that the purchaser, devisee or heir, continuing the possession, and continuing the payment of taxes, shall have the benefit of the law, but in section 6 the words are “claim and color” of title, while in section 7 the word, “claim,” is not used. In the latter section the person, having color of title made in good faith, etc., must pay all the taxes, etc. Hence, it has been held, that, under section 7, a person, interposing the benefit of the limitation, must show that the payment of taxes and the color of title were by and in the same person. Under section 7 payment of taxes for seven years by different persons, one of whom has only a contract for a conveyance, is insufficient. (Dunlap v. Daugherty, 20 Ill. 398; Dawley v. VanCourt, 21 id. 460; Bride v. Watt, 23 id. 507). This restriction, however, which is thus applied to section 7, has no application to section 6. Some confusion has arisen in some of the cases through failure to distinguish between the two sections in this respect.
For the reasons here stated, we think that the appellees have established their defense under section 6 of the Limitation act, and that the court below was correct in decreeing relief in accordance with the prayer of the cross-bill, and in dismissing the original bill for want of equity. The decree of the circuit court is affirmed.
Decree affirmed.