201 Ill. 165 | Ill. | 1903
delivered the opinion of the court:
It is first contended that all rights of David Richards or the plaintiff, his grantee in said premises, are barred by the twenty year Statute of Limitations. (Hurd’s Stat. 1899, p. 1117.) Section 1 of the Limitation act reads, in part, as follows: “No person shall commence an action for the recovery of lands, nor make any entry thereon, unless within twenty years after the right to bring such action or make such entry first accrued.” And paragraph 5 of section 2 reads: “In all cases not otherwise specially provided for, the right [of entry] shall be deemed to have accrued when the claimant, or the person under whom he claims, first became entitled to the possession of the premises under the title upon which the entry or the action is founded.”
There is no evidence that any payment was ever made on said purchase money, or promise to pay the same, which would stop the running of the statute, and no recognition of the rights of David Richards by James Barnes, dir., or any other person or persons, subsequent to the purchase by James Barnes, Sr., and no attempt to collect the purchase money or acquire possession of the land until the commencement of this suit by plaintiff. So soon as the purchase money became due the statute commenced to run" against the debt, and continued to run until it was barred. The right of entry of David Richards was complete so soon as James Barnes, Sr., made default in the payment of the purchase money, and if David Richards failed to commence an action for the recovery of said premises or to make entry thereon within twenty years from the date of such default, his right to bring an action to recover said premises or make an entry thereon, by the express language of the statute, was barred, and he could not afterwards maintain such action or make such entry, and the action or right of entry being barred as to him would be barred as to the plaintiff, who is bis grantee. “Where possession is taken under an agreement to purchase, when the purchaser performs all his obligations such possession becomes adverse and * * * relates back to the entry under such agreement.” (Schneider v. Botsch, 90 Ill. 577; Davis v. Howard, 172 id. 340.) And payment will be presumed after twenty years unless the presumption is rebutted by payment of interest, a promise to pay, or an acknowledgment of the debt in such manner as to save the bar of the statute. Locke v. Galdwell, 91 Ill. 417.
What has been said thus far is based upon the theory that James Barnes, Jr., took possession of and continued to occupy the premises in question as heir-at-law of James Barnes, Sr., deceased, under the contract with David Richards, after his father’s death. The evidence, however, tended to show, and the court was justified from the evidence in finding, that such was not the fact, but that James Barnes, Jr., entered into the possession of the premises, not as heir-at-law, but as purchaser from James Honey, and that he afterwards received a deed therefor from Honey and continued to occupy the premises, claiming title thereto under said deed, up till the time of his death. The tax deed to Honey and the quitclaim deed from Honey to James Barnes, Jr., each purported, upon its face, to convey the fee, and was color of title. That James Barnes, Jr., occupied the premises and paid all the taxes assessed thereon from 1881 to 1891 is not questioned. If he was in possession of the premises under claim and color of title made in good faith for the period of seven successive years, and during that time paid all taxes legally assessed on the premises, he had a good title thereto according to the extent and purport of the paper title received by him from Honey, under section 6 of the Limitation act. It is said, however, he cannot be held to have occupied the premises under said paper title in good faith, as it was his duty, as heir, to pay the taxes, and that having failed to pay them and suffered the land to be sold, bis purchase from Honey amounted to no more than a redemption from such sale. Such would, perhaps, be true if he held as heir of James Barnes, Sr., deceased, but not if he held in his own right and under color of title from Honey. We have held there is good faith when there is no fraud, and that there may be good faith notwithstanding actual noticé of claims or legal defects which prevent the title, of which there is color, from being absolute. (Keppel v. Dreier, 187 Ill. 298.) In any event, the title to the premises now held by George and Silas Grove was acquired from the only heir of James Barnes, Jr., deceased, who inherited from hér father all title therein which he had, and there is nothing in the record to impeach their good faith, and the bad faith, if • any, of James Barnes, Jr., cannot be imputed to them unless they purchased with notice thereof. Lewis v. Pleasants, 143 Ill. 271.
We are of the opinion the trial court properly ruled in holding that plaintiff had failed to show title in himself, and in rendering judgment in favor of defendants. The judgment of the circuit court will be affirmed.
Judgment affirmed.