Cofield v. Furry

Skinner, J. The record in this case shows that Parsons, in 1845, being in possession of the land in controversy, under claim and color of title made in good faith, executed a deed of mortgage of the same to Ivans, which mortgage was foreclosed, and the land sold, under the foreclosure, to Skinner, July 12, 1847 ; that Parsons, on this sale, made an arrangement with Skinner by which he was to pay the mortgage debt, and have a conveyance of the land, on such payment, from Skinner to him ; that, June 20, 1849, Parsons, by arrangement of Vandruffs with Skinner that Skinner should convey to them, sold to Vandruffs, and surrendered possession to them; and that Skinner, January 14, 1851, executed a deed for the land to Vandruffs ; that Vandruffs, January 30,1852, sold and conveyed the land to the defendant below, who took possession, and since has held the same. The record also shows the payment of all taxes assessed on the land for the seven years next preceding the commencement of the suit, as follows: By Parsons, for 1848; by Vandruffs, •for 1849,1850 and 1851; and by the defendant, for 1852,1858, 1854 and 1855. This action was commenced in 1855. The plaintiff, having proved prima facie title, the question is, Has the defendant shown such claim and color of title, and payment of taxes, as will bar the plaintiff’s action ? The statute does not require the possession, under claim and color, to be continued in one pei’son for the period of limitation, nor that the same person shall pay all the taxes for that period. The statute provides that: “ 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.” Nor does the statute require that the taxes be paid during the year for which they accrued. Nor does a fair construction of it require that the person in possession, for a portion, or the whole, of a particular year, should pay the taxes of such year. 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. One object of the statute is to secure payment of the public dues, and the benefit of the payment inures to those who pay under claim and color, and to those who succeed them, and, under claim and color, continue the possession and complete the payment of taxes for the series of years named. The taxes of any one year may be paid at any time before the sale for taxes, which is usually many months after the expiration of the year for which they accrued, and, in practice, they are seldom paid during the year. The construction contended for would preclude a sale of the land and surrender of possession during a current year, for, in such cases, two persons would be in possession during portions of the same year, and neither could pay the taxes for the portion of the year of his possession. The statute must be -so construed as to give it effect and practical operation consistent with its provisions, and the evident purposes of its enactment, in view of its application to the subject to which it relates. 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 the 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. The true question in such case is, Under what title were the taxes paid ? If they were paid under no claim and color, or under title adverse to that to which they are sought to be applied, the payment is unavailing. But, if paid by the tenant, his payment, like his possession, is, in legal effect, the act of the landlord. If the payment is made by the cestui que trust, the effect is the same as if made by the trustee, for the two interests united make the estate, or legal and equitable title to the land, standing together, and not in hostility to each other. Ponge v. Chinn, 5 Dana R. 54; Collins v. Smith, 18 Ill. R. 160. Judgment, affirmed.