Dunlap v. Daugherty

Walker, J. This was an action of ejectment brought by appellees against appellant in the Peoria Circuit Court, for the recovery of S. W. Sec. 2, T. 10 N., 7 east. The plaintiffs below read in evidence a patent from the United States, for the land, to Henry Howe, dated May 27th, 1818 ; next, a certified copy of a deed from Henry Howe to John Morgan, to which was attached the following certificates: “ Windham County, ss. Canterbury, July 14th, 1821. Then personally appeared Henry Howe, signer and sealer of the foregoing instrument, personally appeared and acknowledged the same to be his free act and deed, before me, Andrew T. Judson, justice of the peace.” Then followed the certificate of the recorder of Pike county, in due form, that the above is a true copy. Then follows this certificate : “ State of Connecticut, County of Windham, ss.: I, Uriel Fuller, clerk of the Superior Court in and for said county of Windham, (which said court is a court of record) do hereby certify that Andrew T. Judson, Esq., whose name appears to be attached to the certificate of the acknowledgment of the annexed certified copy of a deed from Henry Howe to John Morgan, was, on the 14th day of July, A. D. 1821, a justice of the peace in and for said county of Windham, and State aforesaid, duly commissioned and qualified; and I do further certify, that the said certified copy of said deed is executed and acknowledged in conformity with the laws of the State of Connecticut, as they existed and were in force on the said 14th day of July, 1821. In testimony whereof, I have hereunto set my hand and affixed the seal of said Windham county, at Windham county aforesaid, this seventh day of August, A. D. 1855, Uriel Fuller, clerk.” To this certificate the seal of court was annexed. The plaintiffs then read in evidence a quit-claim deed from John Morgan to the plaintiffs, dated June 2nd, 1855, properly executed, but containing a description of the land as lying in Peoria county and State of Illinois, and describing it as lying “ in range seven west of the fourth principal meridian. Patented to Henry Howe, and by him conveyed to me by deed dated at Canterbury, Windham county, Conn., July 14th, 1821.” The defendant then read in evidence color of title derived from tax sales of 1830 and 1840, with a connected chain. Fol-well, of whom defendant purchased, received a deed for the premises in October, 1846. Defendant agreed with Folwell for the purchase of this land the 6th of December, 1849, and received a deed after October, 1852, through Folwell’s agent, which bore date the 22nd of January, 1850. Defendant also proved that Folwell paid the taxes on this land for the years 1844,1845, 1846, 1847,1848, and 1849, and by himself for the years 1850, 1851, 1852, 1853, and 1854. The defendant admitted possession of the land at the commencement of the suit, and that it was vacant from 1842 till 1853. The jury found a verdict for the plaintiffs, upon which the court rendered a judgment, and from which the defendant appeals to this court. The first question which we propose to consider, is, the sufficiency of the clerk’s certificate of conformity to the copy of the deed from Howe to Morgan, to entitle it to be read in evidence. The act of 1851, p. 123, allowing copies of deeds tobe read in evidence when the certificate of acknowledgment is not in conformity with the laws of this State, provides that the party offering it shall exhibit with it a certificate of conformity, as provided for in the sixteenth section of chapter twenty-four of the Revised Statutes. The provision referred to is, “ Any clerk of a court of record within such State, territory or district, shall, under his hand and the seal of such court, certify that such deed is acknowledged or proved in conformity with the laws of such State, territory, or district.” Taking these two provisions together, it appears this copy was certified by the proper officer, and if his certificate were attached to a deed instead of to a copy, its sufficiency could hardly be questioned. The clerk certifies that the person whose name appears to the certificate of acknowledgment, was, at the time it bears date, an acting justice of the peace in the county of Windham, State of Connecticut, duly commissioned and qualified, and that the certified copy of the deed is executed and acknowledged, in conformity with the laws of the State of Connecticut, as they existed and were in force at the date of the certificate of acknowledgment. The fact that Judson was a justice of the peace in Windham county, Connecticut, and that Howe, the grantor, is described in the deed as residing in the same county and State, affords strong evidence, when taken with the fact that Windham county is at the caption of the certificate, that the justice acted within the county of Windham and State of Connecticut when he took the acknowledgment. The clerk certifies that this certified copy is acknowledged in conformity with the laws of Connecticut in force at the date of the original deed. When the certified copy is examined, it is found that there is no other acknowledgment to it, but what purports to be a copy of the certificate to the original deed, and the clerk’s certificate could have referred to no other, and if the copy of the certificate of the justice to the copy of the deed was in conformity with the laws of Connecticut when it was made, it follows that the original certificate must have been in conformity. We perceive no error in admitting the copy in evidence. The next question is, whether the defendant has brought himself within the provisions of the ninth section of the twenty-fourth chapter of the Revised Statutes. That section provides, that “ Whenever a person having color of title, made in good faith, to vacant and unoccupied lands, shall pay all taxes legally assessed thereon for seven successive years, he or she shall be deemed and adjudged to be the legal owner of said vacant and unoccupied land, to the extent and according to the purport of his or her paper title.” In giving a construction to this provision, it may be necessary to contrast it with the first clause of the eighth section of the same chapter, which provides, that “ Every person in the actual possession of lands or tenements under claim and color of title made in good faith, and who shall for seven successive years continue in such possession, and shall also, during said time, pay all taxes legally assessed on such lands or tenements, shall be held and adjudged to be the legal owner of such lands or tenements, to the extent and according to the purport of his or her paper title.” When language so nearly similar is employed at the same time, and in the same act, in two different sections, and both relating to the same class of things, we find it difficult to ascertain the legislative intention. The legislature must have had a different object in passing the two sections. They must have intended to protect different kinds of titles, or persons occupying a different relation to the same character of title, or both. If they had intended the two provisions only to operate upon one kind of title, and all persons in the same relation to that character of title, why adopt both provisions, when the latter would have covered all that is embraced in the two. But that such was their intention is repelled by the significant fact that the language employed is different, and certainly makes a clear distinction in the persons who may be connected with the title intended to be protected. By the eighth section, the person must be in possession under claim and color, and must pay taxes under such claim and color of title, for the required period of time; while by the ninth section he is not required to have possession, nor permitted to hold or pay taxes under a person having color, but must himself have the color of title and pay the taxes. This section does not permit a person claiming under color to rely upon the statute. But the eighth section, by its phraseology, does permit the person claiming under the color of title to hold the possession and to pay the taxes, for his claim and possession, and the color of title when united, make the claim and color of title and the possession required by the statute. This is the construction already given to the eighth section by this court. Cofield v. Furry, 19 Ill. R. 183 ; Darst v. Marshall, 20 Ill. R. 227. Justice would require that more protection should be given to the actual occupant, who expends his money and labor in improving the soil, and pays the taxes for the required period, than to the person who only pays the taxes, without occupation, for the same length of time ; and we doubt not that such was the intention of the legislature in adopting the eighth section, and hence they inserted the provision for the protection of persons holding possession, and paying taxes under claim from the person having the color of title. While by the ninth section, in favor of the tax payer having color of title, it is required that both things must unite in the same person: that the person paying the taxes must at the time have the color of title. This court says, in the case of Newland v. Marsh, 19 Ill. R. 376, in construing this section, that the statute “does not commence running only from possession taken of the land, but from the time of the concurrence of the two things: the color of title and payment of taxes, and has performed its office when the color of title and payment of taxes have gone together for the period of limitation.” In this case, the two things required have not concurred; the color of title and payment of taxes have not gone together for the period of limitation. There was not a period of seven successive years in which the person paying the taxes had the color of title at the time of payment. Folwell paid for two years before he became the owner. The defendant paid for two or three years, under his contract for a conveyance, and before he received his deed, and without including these payments by him, payment of the taxes for seven successive years was not shown. And the defendant not having shown color of title and payment of taxes running together for the period limited, has failed to bring himself within the provision of the ninth section, he cannot rely on it as a bar to, plaintiff’s action, and the judgment of the court below should be affirmed. Judgment affirmed.