Chicago, Rock Island & Pacific Railway Co. v. Hardt

Mr. Justice Baker delivered the opinion of the Court; This was ejectment, brought by the Chicago, Bock Island ■and Pacific Railway Company, against Fred Hardt, for the recovery of a strip of land one hundred feet wide, in Cook county, Illinois, said strip being fifty feet in width on each side of a line which enters on the north-east quarter of section 4, township 38 north, range 14, east of the third principal meridian, at a point on the north line thereof eleven chains and sixty-eight links west of the east line of said section 4, running, thence south eighty-seven rods. The only plea interposed was that of not guilty, and therefore the possession by the defendant of the entire premises claimed in the declaration was admitted by the defendant. Ejectment act, sec. 21. At the trial, the company introduced in evidence an affidavit of its attorney that it claimed title to the premises through a common source of title with the defendant,—to-wit, through Charles V. Dyer and Louisa M. Dyer, his wife. It then showed title in itself from such common source through a deed from said Dyer and wife to the Chicago and Bock Island Bailroad Company, and certain articles of consolidation dated August 20, 1866, and certain other articles of consolidation dated June 2, 1880. This made out a prima facie case for the appellant corporation, unless it can be said that the appellee, Hardt, pursued a course that, under the statute, imposed upon the company the burden of going back of the common source- and tracing its title from the United States. Section 25 of the Ejectment act provides: “If the plaintiff, or his agent or attorney, will state, on oath, upon the trial, that. he claims title through a common source with the defendant, it shall be sufficient for him to show title from such common source, unless the defendant, or his agent or attorney, will deny, on oath, that he claims title through such source, or will swear that he claims title through some other source.” There is no pretense that an affidavit denying common source of title was made. In fact, it is contended that the statute requires no such affidavit, and it would seem that the correctness of such contention must be conceded. The statute, however, does require either a denial, on oath, that the defendant “claims title through such source, ” or else a statement, under oath, that the defendant “claims title through some other source.” There was, in this case, no sworn denial of any claim of title by the defendant through the source indicated in the affidavit filed by the plaintiff, but it is urged that the evidence of appellee shows that his claim of title is “through some other source./’ Is this latter contention well founded ? Appellee was a witness in his own behalf, and he produced and identified three deeds: one, a deed from Thomas Murphy and wife to himself, for lot 1, in block 3, in Bawson & Ackerley’s subdivision; another, a trust deed from said Murphy to H. J. Christoph; and the third, a deed from Christoph to himself, and the two last mentioned conveyances being for lot 2, in said block 3. He testified, in connection therewith, that he claimed lot 1, in block 3, under the deed from Murphy and wife to himself, and claimed title to the other lot under the other two deeds, and that said three deeds were the only deeds under which he claimed the property. Non constat, that his claim of title was “through some other source” than that indicated in the affidavit made in behalf of the plaintiff. The common source so designated is “Charles V. Dyer and wife,” •and it may well be that they first conveyed a right of way to the Chicago and Bock Island Bailroad Company, and then made a deed to Bawson and Ackerly, and that Bawson and Ackerly made a deed to Thomas Murphy for lots 1 and 2. Such state of the case would be entirely consistent with everything that is stated in the testimony of Hardt, and yet it would be true that the title of Hardt was in privity with the title of Charles Y. Dyer and wife,, and deducible, through mesne conveyances, from them. It was intended by section 20 of the. Ejectment act to confer a substantial benefit upon plaintiffs, :and to relieve them from the burden of tracing title back to the government in all cases where the titles of both plaintiffs and defendants are deducible from one and the same source. That which is insisted upon here is in plain evasion and fraud •of the statute. The statement made by or on behalf of the defendant, in response to the statement made by or on behalf of the plaintiff, must be made under oath, and whether it is made in the form of a written affidavit or in the form of an ■oral statement at the trial, it is in the nature of a pleading on his part, and is to be taken and interpreted most strongly against himself. It may be that the three deeds in question are the only deeds under which appellee claims the property. But that is not sufficient. Under the statute, if he wishes to impose upon appellant the duty of tracing title back of the Dyers, it is incumbent upon him either to deny, under oath, •that he claims title through said Dyers, or else swear that he claims title through some other source,—i. e., a source other and different from that specified in the affidavit of the- attorney of appellant. Appellee failed to do this. Appellant es-. tablished, prima facie, a right of recovery. The defense of appellee to the action of appellant, otherwise-' •than is above indicated, seems to be based on a claim of seven years’ possession under color of title made in good faith, with-payment of taxes. To establish a bar under section 6 of the Limitation act, the possession and the payment Of taxes must both relate to the same land which is described in the instrument introduced as claim and color of title. (Cooter v. Dearborn, 115 Ill. 509.) And so, also, the identity of the premises covered by the color of title with all or some portion of the real estate in controversy must be shown, for otherwise the color, possession and payment of taxes, manifestly, are wholly immaterial to the issue. Here, the deeds of appellee are for lots 1 and 2, in block 3, in Bawson and Ackerly’s subdivision of the north seventy-four rods of the north-east quarter of section 4, township 38 north, range 14, east of the third principal meridian, lying east of the Chicago, Bock Island and Pacific railroad. We find, however, no evidence whatever in the record that shows that said lots 1 and 2, or either of them, constitute or constitutes all or any portion of the strip of land in said quarter section, which is one hundred feet wide, and which lies fifty feet in width on each side of the line which enters said quarter section at a point on its north line eleven chains and sixty-eight links west of the east line of said section, and runs thence south eighty-seven rods. Therefore, the deeds of appellee may be for lands which lie wholly east . of the railroad right of way, and, under the evidence adduced .at the trial, said deeds utterly fail to show color of title to all or any portion of the strip of land for which suit was brought. It was error in the circuit court to instruct the jury to find the issues for the defendant. The judgment is reversed. The cause is remanded. Judgment reversed.