Miller v. Stalker

Mr. Justice Wilkin delivered the opinion of the court: The first'ground of reversal insisted upon is, that the evidence introduced upon the hearing proved the title to the property in question, at the time of the destruction of the records, to be in plaintiffs in error, as shown by the record. This contention is based upon the fact that the first amended petition, which was introduced in evidence by the defendants, showed a regular chain of title from the government to Thomas R. Greene, and, as we understand counsel, they claim that the defendants’ sworn answer so connects them with that record title as to prove ownership in them in fee. Conceding that the amended petition was competent and sufficient evidence, as against petitioner, to prove title in Thomas R. Greene by mesne conveyances from the United States, the position that defendants have in any way connected themselves with that title is untenable. The sworn answer in this proceeding is not evidence, as in an ordinary chancery proceeding. It has no other or greater weight as evidence than the petition. (2 Starr & Curtis, sec. 13, chap. 116, p. 1998.) Moreover, the answer does not show in what manner defendants acquired title from Thomas R. Greene. The averment, “by virtue of divers deeds, wills, devises,” etc., amounts to nothing as proof of title. It is no more than the statement of a mere conclusion. It is again insisted, that the petitioner, by his petition and proofs, failed to establish such title in himself as would authorize a court of chancery to grant him the relief prayed. The basis of this contention is that a petitioner, under the Burnt Records act, must by proper averments show that he derives his title mediately or immediately from the United States. This position we dp not think is supported by the provisions of the act or the decisions of this court. A person can certainly have an absolutely good title to real estate in this State though not able to show a connected chain of title from the United States, and there is nothing in the Burnt Records act which makes the owner of such a title an exception to that rule. Section 11 prescribes what the petition shall show, and it only requires the petitioner to state the character and extent of the estate claimed by him, and from whom and when and by what mode he derived his title. By section 18 the defendant is required, if he answers, to admit, confess and avoid or traverse all the material allegations of the petition. It was said in Smith v. Hutchinson, 108 Ill. 662 (on p. 666): “The petitioners were only required to establish the validity of their own title. The statute provided that they should make all persons owning or claiming any estate in fee in the premises, and all persons in possession, and all persons to whom the land had been conveyed and the deeds placed on record since the destruction of the record, defendants. But when such persons were made defendants and were served with process, it became their dnty to establish, by competent testimony, whatever title they had to the premises, if they desired to rely upon such title.” It was also said in Gage v. Gentzel, 144 Ill. 450 (on p. 456): “The court, in such cases, is required to decree, not what the record showed before it was destroyed, but in whom the title is vested,”—citing section 15 of the statute. If, therefore, the petitioner, by his allegations and proof, established a prima facie valid title, from whatever source, he was entitled to the decree below unless the defendants showed a better one. The petition alleges color of title, made in good faith, possession and payment of taxes for more than seven years, and sets out the color of title as being deeds of conveyance, duly executed, recorded, etc. We think there can be no serious doubt as to its sufficiency to show title in the petitioner under section 6, chapter 83, of the Revised Statutes, being the seven year statute of limitations of 1839. It is also clear, that when the requirement's of that statute were complied with, by his obtaining color of title from Badeaux, in good faith, having actual possession of the premises and paying all taxes for more than seven years,-—i. e., to March 12,1859,—he became possessed of a title which he could use, not only to protect his possession, but as against every one claiming adversely to him. (Hale v. Gladfelder, 52 Ill. 91; McDuffee v. Sinnott, 119 id. 449;" Gage v. Hampton, 127 id. 87.) It was not necessary that he should show any title prior to the conveyance to himself, in order to make color of title in good faith. Woodward v. Blanchard, 16 Ill. 424; Hassett v. Ridgely, 49 id. 197; Rawson v. Fox, 65 id. 200 ; Milliken v. Marlin, 66 id. 13; Burgett v. Taliaferro, 118 id. 503; Brian v. Melton, 125 id. 647. The proof fully sustained every material allegation of the petition necessary to establish color of title made in good faith, possession and payment of taxes. That the deed from Badeaux to petitioner, dated August 2, 1849, is, under the repeated decisions bf this court, good color of title, is not questioned. It seems clear, therefore, that by the allegations of his petition and proofs the petitioner is entitled to be deemed the owner of the premises in question in fee, by the terms of the act of 1839, supra. Plaintiffs in error also say the court below erred in finding in its decree that the affidavit of James G. Dwen and the recorded will of Elizabeth Greene tend to cloud petitioiier’s title and should be removed from the records of Cook county. It is clear these instruments are a cloud upon petitioner’s title, and, from what has already been said, as against him they have no rightful place upon the records of Cook county, and it is in that sense only that the decree orders them removed. Other questions raised have been considered, but we find them unimportant. There seems to be no reversible error shown in this record. Decree affirmed.