Fell v. Cessford

Breese, J. We propose to examine but one of the points made in the case, and that is, did color of title and payment of taxes for seven successive years, concur in the appellee, who was defendant below. The appellant made out a clear legal title to the premises, through conveyances from the original patentee of the land, of which the lot in question was a part. The defendant exhibited a deed from the sheriff of McLean county, to James Allin, dated in September, 1843, based on a sale for taxes on the 10th May, 1841—a quit claim deed from Allin to James Allin, Jr., dated Feb. 11, 1852, releasing to him all his interest in the lot, and a quit claim deed from James Allin, Jr., to Peter Donahue, dated Oct. 26,1854. It was admitted the defendant was tenant of Donahue. The defendant then introduced a tax receipt, dated June 3, 1853, for the taxes of 1852, paid by James Allin, Jr.; also one dated April 24,1854, for the taxes of 1853, paid by the same person; also a tax receipt dated October 11th, 1855, for the taxes of 1854, paid by the same person; and then proved payment of taxes by Peter Donahue, his grantee, for the years 1856, 7, 8, 9, and 1860. The collector’s book of 1854 showed the assessment of the lot in the name of James Allin, Jr. The defendant then proved by James Allin, Jr., that about six or twelve months after he made his deed to Donahue, he, Donahue, took possession of the lot and built a house on it. He also testified that he paid the taxes of 1854 with Ms own money, on the 11th October, 1855. The suit was brought to the February term, 1860, of the McLean Circuit Court. The appellee contends that these facts bring him within the eighth section of our limitation act or conveyance act, chap. 24. That section is familiar to all. It provides for an actual possession of laiids or tenements under claim and color of title made in good faith, and a continuance in such possession for seven successive years, and for the payment of all taxes legally assessed on such land or tenement during that time. These facts combined or concurring, make the party setting them up the legal owner of the land or tenement to the extent and according to the purport of his paper title, (Scates’ Comp. 750.) The want of any one of them, vitiates the title. The proof in this case does not show, first, a continued possession of seven years, nor does it show the payment of taxes for seven successive years—the taxes for the year 1855 being unpaid, nor does it show, that the payment of taxes and color of title unite in one and the same person at the times the taxes were paid. James Allin, Jr., did not hold the color of title when he paid the taxes of 1854. They were paid by him with his own money in October, 1855, one year before which time, he had transferred his title, whatever it was, to Donahue, so that at the time of this payment, the color of title was in Donahue. The benefit of this payment cannot enure to the benefit of the purchaser from Mm. For that year, Allin paid the taxes, and Donahue held the color of title. The case seems to fall fully within the decisions in Cofield v. Furry, 19 Ill. 186; Newland v. Marsh, ib. 385 ; Dunlap v. Daugherty, 20 Ill. 404; Dawley v. Van Court, 21 ib. 462; and Bride v. Watt, 23 ib. 512. The judgment is reversed, and the cause remanded for further proceedings consistent with this opinion. Judgment reversed.