Converse v. Dunn

Mr. Chief Justice Magruder delivered the opinion of the court: This is an action of ejectment, brought by appellee against the appellant and others for certain lots in South Chicago, in Cook county. The suit was begun August 7, 1890. Pleas were filed, and a trial was had resulting in verdict and judgment for the plaintiff. This judgment was set aside and a new trial awarded under the statute. The defendant, Reed, withdrew his plea of general issue and suffered default. Thereupon the defendant, Converse, the appellant here, obtained leave to file a plea puis darrein continuance, and the clerk was ordered to file such plea as of July 13,1893. The plea avers, in substance, that the defendant paid all the taxes upon the lots in question under color of title made in good faith during five successive years before the beginning of this suit while the lots were vacant and unoccupied; and that he paid all the taxes legally assessed upon such lots for two years after the beginning of this suit while the same were vacant and unoccupied; and that, having paid the taxes upon such lots while they were vacant and unoccupied for seven successive years, five of which were before the beginning of the suit and two of which were after the beginning of the suit, he took actual possession on June 2,1893, nearly three years after the beginning of the suit. The plea sets up such payment of taxes during such seven successive years while the lots were vacant and unoccupied, as a defense to the suit under section 7 of the Limitation law. (2 Starr & Curtis’ Stat. p. 1547). The plaintiff below, appellee here, demurred to this plea. The demurrer was sustained, and the appellant elected to stand by the plea. Thereupon, the court entered judgment, that the plaintiff have and recover possession in fee simple of the premises, and that a writ of possession issue therefor. The present appeal is prosecuted from such judgment. First—An action of ejectment may be brought, under the statute of this State, where the premises are not occupied, against a person claiming title thereto at the commencement of the suit. Section 7 of the Ejectment act is as follows: “If the premises are not occupied, the action shall be brought against some person exercising act of ownership on the premises claimed, or claiming title thereto, or some interest therein, at the commencement of the suit.” (1 Starr & Curtis’ Stat. p. 982). Section 22 of the same act provides: “It shall not be necessary for the plaintiff to prove that the defendant was in possession of the premises, or claims title or interest therein at the time of bringing the suit, or that the plaintiff demanded the possession of the premises, unless the defendant shall deny that he was in such possession, or claims title or interest therein, or that demand of possession was made, by special plea, verified by affidavit.” (St. Louis, Alton and Springfield Railroad Co. v. Hamilton, 158 Ill. 366). Section 23 of said act provides, that it shall be sufficient for the plaintiff “to show a right to the possession of such premises at the time of the commencement of the suit, as heir, devisee, purchaser or otherwise.” (1 Starr & Curtis’ Stat. p. 986). In Hanson v. Armstrong, 22 Ill. 442, it was held, that, under the said section 7, the action of ejectment can be brought against a person claiming title, etc., when out of possession and the premises are vacant and unoccupied. In Reed v. Tyler, 56 Ill. 288, we said (p. 291): “Reference is made to the decisions of different courts, under statutes similar to our own, that ejectment will lie against a party out of possession, where he claims title to unoccupied land. Admitting that to be the construction of our statute in the case of unoccupied lands, we do not understand that ordinarily a party in the actual occupation of land can maintain ejectment against one out of possession who only claims title to the land.” The case of Reed v. Tyler, supra, does not directly, and in terms, decide that ejectment will lie against a party out of possession where he claims title to unoccupied land, but impliedly concedes, that such is the proper construction of our statute in the case of unoccupied land. In New York, however, where a section of the statute of that State was the same as section 7 of our Ejectment law, it was held, in a case involving the construction of such section, that ejectment for premises not actually occupied may be brought against one claiming title at the commencement of the suit. (Banyer v. Empie, 5 Hill, 48.) We are, therefore, of the opinion that the present action of ejectment was not improperly brought, although the defendants were not in possession of the premises when the suit was commenced. Second—The main question presented by the demurrer to the plea puis darrein continuance is this: Gan a defendant in an action of ejectment set up as a defense thereto, the payment of taxes for seven successive years, under color of title made in good faith, upon vacant and unoccupied premises, when five only of such years were before the beginning of the suit, and two were after the beginning of the suit; in other words, does the statute require that the payment of the taxes upon vacant and unoccupied land must be for a period of seven successive years prior to the beginning of the suit, in order to make such payment a defense to the action of ejectment? We are of the opinion, that section 7 of the Limitation law, which requires the payment of the taxes for seven successive years, under color of title made in good faith, upon vacant and unoccupied land, cannot be invoked as a defense, unless such payments have been made for seven successive years before the beginning of the suit. It is a well settled rule of property in this State, that, when color of title made in good faith and payment of taxes for seven successive years on vacant and unoccupied land have become united with the actual possession of the holder of such color of title, the bar of said section becomes complete and operative against the holder of the true title. (Gage v. Smith, 142 Ill. 191). In the case at bar, however, not only were two of the sexren years after the beginning of the suit, but the taking possession upon the expiration of the seven years also occurred after the beginning of the suit. The general rule is, that the bringing of the suit by the plaintiff terminates the running of the Statute of Limitations, and that the plaintiff need not recover judgment within the statutory term. (13 Am. & Eng. Ency. of Law, p. 746). It is a peculiarity of other statutes of limitation, that the statute does not run while an action to recover the matter in dispute is pending. (Chicago and Northwestern Railway Co. v. Jenkins, 103 Ill. 588). The same principle applies to sections 6 and 7 of our Limitation act, in regard to seven years’ payment of taxes under color of title made in good faith, coupled with possession of the land, or while the land is vacant and unoccupied. In Miller v. Pence, 132 Ill. 149, we said (p. 160): “The owner of the paramount title can arrest the running of the statute at any time by beginning his action. If he lies by and allows the occupant to hold the land until the statutory bar becomes complete, it is his own fault.” In an action of ejectment the plaintiff must show title in himself at the time of the commencement of the suit. (Pitkin v. Yaw, 13 Ill. 251)." It would avail him but little to show that he had title at the time of the commencement of the suit, if the right of recovery upon such title could be destroyed by the perfecting of title in the defendant after the beginning of the suit. In Mills v. Graves, 44 Ill. 50, it was said: “The state of the title at the commencement of the suit is made the criterion for either success or defeat.” This court has held in a number of cases, that payment of taxes for seven years coupled with color of title and possession is not sufficient to create the bar; but that a period of seven years must .have intervened between the day when the first payment of taxes was made and the day of the commencement of the suit. (Clark v. Lyon, 45 Ill. 388; McConnell v. Konepel, 46 id. 519; Lyman v. Smilie, 87 id. 259; Iberg v. Webb, 96 id. 415; Holbrook v. Debo, 99 id. 372; Burton v. Perry, 146 id. 71). The same principle applies to section 7 in regard to the payment of taxes for seven successive years, under color of title made in good faith, upon vacant and unoccupied lands. In the case at bar, the plea upon its face shows, that the first payment of taxes was on May 1, 1885, while the suit was begun upon August 7, 1890; so that only a little more than five years had elapsed between the first payment of taxes and the day of the commencement of the suit. It follows, that, under the decisions of this court, the defense set up in the plea demurred to was not a valid defense. The action of the court in sustaining the demurrer to the plea and rendering judgment for the plaintiff was, therefore, correct. Accordingly, the judgment of the circuit court is affirmed. Judgment affirmed.