Stubblefield v. Borders

Mr. Justice Mulkey delivered the opinion of the Court: On the third day of September, 1877, appellee commenced in the Randolph circuit court an action of ejectment against appellant for the recovery of the south-east quarter of the southeast quarter section 3, township 4 south, range 7 west, in the county of Randolph and State of Illinois. At the September term, 1877, of the court, the cause, by consent of parties, was submitted to the court without a jury. Upon hearing the evidence the court found in favor of appellee and entered judgment accordingly. Appellant brings the record to this court and assigns for error the finding and judgment of the circuit court. Upon the trial below appellee showed a prima facie right to recover the premises in question by proving a connected chain of title from the Government to himself. Appellant relied upon possession of the premises under claim and color of title made in good faith, and payment of all taxes legally assessed thereon for seven years. For the purpose of establishing this defence appellant put in evidence a tax deed for the premises in question, executed on the 21st of March, 1862, by the sheriff of the county to himself. By the recitals in this deed, and other evidence in the case, it appears that the premises in question were, on the 22d of September, 1856, sold for the taxes of 1855 to one James Thompson, who, on the 21st of January, 1861, assigned his certificate of purchase to appellant, by means of which he obtained a sheriff’s deed which is relied on as color of title. Appellant also put in evidence seventeen tax receipts, which, together with his own testimony, show conclusively that - he had paid all taxes assessed upon the premises for seventeen consecutive years, commencing with the year 1860. The date of the first payment is not shown, but it was doubtless made in 1861, and probably about the time he obtained the certificate of purchase. The tax deed is in the usual form and entirely regular so far as anything appears upon its face. Indeed, no objections are urged against its sufficiency. The only objection suggested against it is that it was not pertinent to the issue. In addition to the sheriff’s deed and tax receipts, appellant testified on his own behalf as follows: “ Have resided on the land in controversy, and been in open, visible possession of it ever since; my tax receipts, produced in evidence, show that I have paid the taxes on it ever since 1860 and before, and now reside upon it. I have during all that time paid all the taxes legally assessed upon that land, and have made improvements on it. I bought the land from Frank Helman; took possession under that bargain; could not get a deed from him because there was dispute between us about my having paid for it; I claimed I had, and he disputed it.” This was all the evidence in the case. The law is so well settled in cases of this character, that it would seem there ought to be no difference of opinion upon any question presented by this record. It is the settled law of this State that a tax deed regular on its face is sufficient color of title within the meaning of the Limitation act of 1839. Woodward v. Blanchard, 16 Ill. 433; Dawley v. Vancourt, 21 id. 460; Halloway v. Clark, 27 id. 483; Morrison v. Norman, 47 id. 477. The possession and payment of taxes after appellant had acquired this color of title were concurrent for more than the full period of seven consecutive years. So far, conceding the competency of the evidence, there can be no question as to the sufficiency of appellant’s defence. The only remaining question to be considered is, were appellant’s claim and color of title acquired and made in good faith? This inquiry presents a question of fact, to be determined by the evidence and the general presumptions of law with respect to the motives and intentions of men in the business affairs of life. The rule that'good faith is always presumed until the contrary is shown, and that fraud, or bad faith, will never be presumed, and that whoever alleges the one or the other is bound to prove it, are among the oldest doctrines of the common law. In McConnel v. Street et al. 17 Ill. 253, a case arising under this same statute, the court, in discussing the very point now under consideration, said: “ Good faith, within the meaning of this statute, we understand to be the opposite of fraud and of bad faith, and its non-existence, as in all other cases where fraud is imputed, must be established by proof.” Again, in Morrison et al. v. Norman et al., supra, where the same question was under discussion, the court uses the following language : “ It is the settled rule of this court that a deed regular on its face is good color of title under the statute, and that bad faith will not be presumed of the grantee in the absence of proof.” Many other cases might be cited to the same effect, but we deem it unnecessary to do so. Taking it, then, as the settled law that good faith is always presumed till the contrary is shown, and that he who alleges bad faith assumes the burden of proving it, we ask where is the evidence in the record before us showing, or even tending to show, bad faith or an absence of good faith on the part of appellant in connection with the title upon which he relies as a defence? It is suggested by appellee that because appellant was in possession of the premises at the time he acquired the certificate of purchase from Thompson, therefore his purchase of the certificate should be regarded simply as a redemption from the tax sale. ISTo authority is cited for the position assumed, and under the facts as here presented we do not regard it as sound. On the contrary the certificate of purchase in the hands of Thompson was in the nature of an outstanding title. It was in market, and appellant had the same right to purchase it that any one else had, and upon its assignment to him he acquired the same interest in it that any other purchaser would. Like any other person having a possessory title to real estate, who is apprehensive as to its validity, he had a perfect right to fortify his position by buying in a threatening outstanding title. Of course, if there was evidence showing that appellant was in possession of the premises, claiming them as owner, when the taxes were assessed upon 'the land, and that they were assessed in his name, or that he was otherwise legally bound to pay them, or that the tax sale was attributable to his own neglect of duty, the rule would be otherwise. The case would then fall within the principle laid down in Glancy v. Elliot, 14 Ill. 456, Voris et al. v. Thomas, 12 id. 442, and Chotean v. Jones et al. 11 id. 300. But there can be no pretence for any claim of that kind here. The record does not disclose when appellant went into possession, or in whose name the taxes were assessed. The only light thrown upon this branch of the case is what appellant states himself. He says: “I have resided on the land in controversy, and been in the open, visible possession of it * * ever since 1860 and before.” How long before—whether a day, week, month, or year or years—he does not say, and this is all that is said in reference to the matter. As to whose name the land was assessed in, or whose duty it was to pay the taxes for which it was sold, we are without any evidence Avhatever to enlighten us. However, since the law presumes good faith, avc must, in the absence of all evidence upon the subject, assume that the duty of paying these taxes did not devolve on appellant, and that he therefore had the right to acquire the certificate of purchase from Thompson, and take from the sheriff a tax deed for the premises in the manner he did. Indeed, appellee does not seem to seriously question the proposition that a complete defence was shown under the statute, but he earnestly insists that, under the issue formed, the proofs were not admissible. He maintains that the statute upon which appellant’s defence is founded, being one of limitation, should have been specially pleaded, and that inasmuch as appellant failed to interpose a special plea setting up the statute, all the evidence admitted upon that subject by the court below was irrelevant, and can not therefore be considered by this court; and in support of this position cites the cases of School Trustees v. Wright et al. 12 Ill. 441, and Schooner “Norway” v. Jensen, 52 id. 378, neither of which is like the case at bar. We concede the general doctrine to be as claimed by appellee, but it has no application to actions of ejectment. Counsel for appellee seem to have wholly overlooked the statute on the subject. The 19th section of chapter 45 of the Revised Statutes of 1874, entitled “ Ejectment,” expressly provides, that if the defendant does not demur to the declaration he shall plead the general issue, * * and upon such plea he may give in evidence any matter that may tend to defeat the plaintiff's action, except as therein-after provided. The exception referred to is contained in the 22d section, which requires the defendant, if he intends to question the fact of his own possession, or that he claims title or interest in the premises, or that demand of possession was made before suit, to file a special plea, verified by affidavit, denying the one or the other or all of these facts, as the circumstances may warrant or he may desire. A special plea putting in issue some or all the matters specified in this 22d section of the Ejectment act, is the only kind of special plea required in any case in an action of ejectment. All other defences may and should be shown under the plea of not guilty. Warren v. The President, etc. 15 Ill. 236; Walker v. Armour, 22 id. 658. If we are right in the views here presented, it follows that. the circuit court erred in rendering judgment for appellee. Under the issue and proofs the finding and judgment should have been for appellant. For the error indicated the judgment of the circuit court must be reversed, and the cause remanded. Judgment reversed.