Sexson v. Barker

Mr. Justice Cartwright delivered the opinion of the court: Free Sexson.died intestate about February 22, 1843, seized of the lands involved in this case, and leaving Polly Sexson, his widow, and eleven children, his heirs-at-law. After his death, Isaac Free Sexson, one of the children, died in infancy, intestate, and the interest of that child in the premises passed to the mother, Polly Sexson, and the brothers and sisters, as heirs-at-law. Another of the heirs, Churchwell H. Sexson, died intestate in February, 1852, two months before the birth of appellee, his only child, who inherited his interest. Polly Sexson, the widow, conveyed by deed to Perry Sexson, appellant, who was one of the heirs, the share in the lands which she inherited from her infant child, Isaac Free Sexson, and all the others heirs, except appellee, also conveyed by their deeds their respective interests in the premises to appellant. Appellee began this suit in 1896, by filing her bill for partition and for an accounting of rents and profits. Appellant answered that he acquired the share claimed by appellee under a decree for the specific performance of a contract for the purchase of the same made by him with Churchwell H. Sexson, appellee’s father, and a conveyance by a master in chancery, in pursuance of said decree, on April 9, 1853; that he had been in actual, adverse and notorious possession of the real estate from that day, and had made valuable improvements thereon, and that he ]had paid the taxes while so in possession under said deed. There were other defendants to the bill, but it was dismissed as to them on the hearing, and there was a decree in favor of appellee for the partition of the premises. It was proved at the hearing that the defendant, Perry Sexson, in the fall of the year 1851 made a verbal contract with complainant’s father, Churchwell H. Sexson, for his interest in the lands for §65, which was all that the interest was worth at that time. About one-fourth of the purchase money was paid in cash, but Churchwell H. Sexson died before the balance was paid or a deed made. After his death defendant filed his bill in chancery against complainant for the specific performance of that contract. A guardian ad litem was appointed for complainant as defendant in that suit, and the court, having heard the proof, entered a decree for the specific performance of the contract, and the execution of a deed by the master in chancery upon the payment of $47.50, the balance found to be due. The money was paid to the master and the deed executed. Defendant was appointed guardian of complainant, and held the money as such until her majority, when he paid it to her, with interest, in October, 1870, amounting to $84.16, and settled his account as her guardian. After the death of Free Sexson, his widow, Polly Sexson, continued to live in the old homestead on the premises. Defendant moved on the land in November, 1857, and lived in a small house which he built until 1860, when he exchanged houses with his mother and moved into the old homestead. Complainant lived with her grandmother, Polly Sexson, until her marriage, when sixteen or seventeen years of age, and she then went to live with her husband. About the year 1872 or 1873 the widow abandoned housekeeping and became a member of defendant’s family, and so remained until her death, in 1887. Defendant built a new house in 1876 on the premises and lived on the land continuously, and paid the taxes from 1857 until the commencement of this suit, in 1896. Complainant lived near the lands for twenty years before filing her bill, during all of which time defendant was in possession and claiming ownership. It will only be necessary to consider the defense of color of title and payment of taxes for seven years while in possession of the premises. There is no doubt that the deed to the defendant from the master in chancery constituted color of title, and the only controversy between the parties is whether it was acquired in good faith. The good faith of the defendant is a question of fact, and in the absence of evidence to the contrary it will be presumed. Bad faith will not be presumed, but must be established by proof. (McConnel v. Street, 17 Ill. 253; McCagg v. Heacock, 34 id. 476; Brooks v. Bruyn, 35 id. 392; Morrison v. Norman, 47 id. 477; Stumpf v. Osterhage, Ill id. 82.) In order to overcome this presumption the evidence must show a design to defraud the person having a better title, and in this case there is an absence of evidence tending to prove that fact. There is nothing in the testimony which casts any suspicion of fraudulent intent upon the defendant or his motives, or that tends to show any design on his part to defraud the complainant in any manner. The contract was made with complainant’s father, and the price agreed upon was the full value of the interest purchased. Defendant carried out the contract in good faith, and the only ground alleged by counsel for imputing bad faith to him consists of certain objections to the proceedings in the suit for specific performance. These objections are not sufficient to show bad faith. It will not suffice for that purpose to point out that the contract was a verbal one and subject to a defense for that reason, or that the decree might have been reversed because the evidence was not preserved in the record, or that the court acted without jurisdiction. The fact that a deed fails to pass an absolute title is not material, and the fact that it is made under a decree which was erroneous, or even void, in the absence of fraud, will not affect the defense under the Statute of Limitations. Huls v. Buntin, 47 Ill. 396; Hinkley v. Greene, 52 id. 223; Reedy v. Camfield, 159 id. 254. It is claimed that the cases of Bowman v. Wettig, 39 Ill. 416, and Dalton v. Lucas, 63 id. 337, establish the doctrine that defendant was bound to know the law and to know that the verbal contract for the land could not be enforced, and that the decree for its enforcement was erroneous, and therefore he was guilty of bad faith in so acquiring the deed. Such a doctrine would abrogate the statute and require the party claiming its benefit to establish a valid title, and in the case of Davis v. Hall, 92 Ill. 85, it was said that the apparent teachings of the opinion in Bowman v. Wettig, supra, had not been adhered to in the later cases. The decision in Dalton v. Lucas was based on the prior case of Bowman v. Wettig, but if given full effect it could not influence the decision in this case. That case involved a knowing and intentional omission by a purchaser at a tas sale to give a notice required by the statute, and thereby keep the owner in ignorance of his rights, and it has no application here. The decree of the circuit court is reversed, and the cause is remanded to that court with directions to dismiss the bill. Reversed and remanded.