Carpenter v. Fletcher

Mr. Justice Farmer delivered the opinion of the court: If the decision of this case depended upon whether the partition of 1897 and the subsequent acts of the parties to that suit toward the land in controversy amounted to an ouster or disseizin of defendants in error, which is affirmed by plaintiffs in error and denied by defendants in error, the question would have to be decided in favor of the former. The rule is well settled that the mere possession by one tenant in common who receives all the rents and profits and pays the taxes assessed against the property, no matter for how long a period, cannot be set up as a bar against the co-tenants. In such case the possession of one tenant in common is, in contemplation of law, the possession of all the tenants in common. (McMahill v. Torrence, 163 Ill. 277, and cases there cited.) Such possession, however, may become adverse if the tenant in common by his acts and cónduct disseizes his co-tenants by repudiating their title and claiming adversely to them. “To constitute a disseizin there must be outward acts of exclusive ownership of an unequivocal character, overt and notorious, and of such a nature as by their own import to impart information and give notice to the co-tenants that an adverse possession and an actual disseizin are intended to be asserted against them.” Busch v. Huston, 75 Ill. 343. We are of opinion that 'under the rule thus announced the acts of plaintiffs in error proven by the evidence in this case were sufficient to amount to a disseizin of defendants in error. But in our view that question is not decisive of this case. It is not, and could not be, denied that defendants in error inherited an interest in the land in controversy from their deceased brother, Francis J. Fletcher. The decree for partition of the land, they not having been made parties to the suit, did not divest them of their interest and vest it in plaintiffs in error. But it is claimed that the decree was color of title, under which the parties went into possession and so remained for seven years, during which period they paid all the taxes assessed against the premises, and by virtue' of the seven years Statute of Limitations defendants in error are barred from recovery. We have decided that a decree in partition is .color of title. (Hassett v. Ridgely, 49 Ill. 197; Rawson v. Fox, 65 id. 200; Wright v. Stice, 173 id. 571.) The crucial question, therefore, for" determination is, can a tenant in common, while in possession under the common title, acquire color of title adverse to his co-tenants and defeat their title under the seven years Statute of Limitations? The rule is settled by numerous decisions that a tenant in common in possession cannot acquire color of title in himself to the whole of the premises by procuring for his own exclusive benefit an outstanding adverse title. The title so acquired inures to the benefit of all the tenants in common. (Montague v. Selb, 106 Ill. 49; Bracken v. Cooper, 80 id. 221; Busch v. Huston, supra.) The rule is otherwise if the outstanding adverse title is acquired by one tenant in common who is out of possession and who enters into possession under and by virtue of the title so acquired. In that case the entry under the adverse title is hostile and not for the benefit of the co-tenants. In this case the possession of the plaintiffs in error of the lands in controversy prior to the partition suit was not hostile to defendants in error, but was, in law, the possession of all the parties interested. While there may be a distinction between the title claimed by plaintiffs in error by virtue of the partition suit and the acquiring of an outstanding adverse title, we believe the policy of the law to be that no tenant in common in possession for the benefit of all the co-tenants can in any manner acquire color of title that will ripen into a bar against his co-tenants under the seven years Statute of Limitations. Unquestionably such a bar may arise under the twenty year statute where the possession and claim of title are such as to comply with the requirements of that statute. In Sontag v. Bigelow, 142 Ill. 143, Sontag acquired title of one tenant in common to certain lands and by virtue of the title so acquired entered into possession of the premises. Afterwards there was a sale in partition of the whole of. the premises, at which Sontag was the purchaser. After receiving this deed he appears to have remained in the possession of the premises and to have paid the taxes thereon for more than seven successive years, when the other tenants in common brought an ejectment suit against him. On the trial he offered in evidence the master’s deed made under the partition sale. This deed was not relied on as title but was claimed to be color of title. This was, apparently, because of some defect in the partition suit which is not pointed out in the opinion. The court held that while the evidence established color of title and seven years’ possession and payment of taxes, such title could not prevail against the co-tenants because the possession was not adverse, and also because, having entered into possession of the premises as a tenant in common, he could not afterwards acquire color of title and invoke the aid of the seven years Statute of Limitations against his co-tenants. The court said (p. 153) : “He therefore acquired possession of the premises as a tenant in common with the plaintiffs, and, occupying that position, he could not acquire color of title in 1874 and rely upon such title to defeat the plaintiffs.” While that is the only case to which we have been referred in which it has been squarely held that a co-tenant in possession cannot acquire and rely upon color of title as against his co-tenants, yet it seems, upon reason, that the conclusion there reached must be correct. If the co-tenant in possession cannot acquire and assert against his co-tenants an adverse, outstanding title superior to the title of all the co-tenants, and by which the title pursuant to which the co-tenancy exists would be entirely defeated, as was held in Montague v. Selb, supra, it follows that he may not rely upon color as against the other tenants in common. To decide otherwise would be to say that he may not assert the substance,—the true title,—but may so use the shadow,—■ the color of title. Neither Hassett v. Ridgely, supra, nor Baldwin v. Ratcliff, 125 Ill. 376, was within this rule, because in neither of those cases had the alleged co-tenant or co-tenants who relied upon color ever been in possession under the common title holding for the benefit of all. Defendants in error have assigned cross-errors upon that portion of the decree holding they are barred from asserting their claim and interest in the twenty-six and. two-thirds acres assigned to the widow as dower, with remainder to her children in fee. The widow and children have resided continuously upon this twenty-six and two-thirds acres since the partition, and the chancellor appears to have held that defendants in error were barred from a recovery of their interest in said tract under section^ of the Limitation act. This section is as follows: “Action brought for the recovery of any lands, tenements or hereditaments of which any person may be possessed by actual residence thereon for seven successive years, having a connected title in law or equity, deducible of record, from this State or the United States, or from any public officer or other person authorized by the laws of this State to sell such land for' the non-payment of taxes, or from any sheriff, marshal or other person authorized to sell such land on execution, or under any order, judgment or decree of any court of record, shall 'be brought within seven years next after possession being taken, as aforesaid; but when the possessor shall acquire such title after taking such possession, the limitation shall begin to run from the time of acquiring title.” The title relied upon by the widow and children is not “deducible of record from this State or the United States.” It is based upon the decree for partition. Under said section we have held that mere color of title is not sufficient but that a prima facie title is required. If a deed is relied on under section 4, made by any officer mentioned in said section under any order, judgment or decree of a court of record, the judgment, order or decree authorizing the issuing of the deed, must be produced. If title is claimed by virtue of a tax deed the judgment and precept must be ..offered in evidence. The rule is different under claim of title under sections 6 and 7. There only color of title is required, and a deed by an officer authorized to make a deed will constitute color of title without introducing the judgment, order or decree in pursuance of which it was made. (Elston v. Kennicott, 46 Ill. 187.) In Burton v. Perry, 146 Ill. 71, the court said (p. 124) : “Any deed which purports on its face to convey title may be used as color of title under section 6 of the Limitation act, which provides for possession. and payment of taxes for seven years, and under section 7 of the same act, which provides for payment of taxes for seven years while the land is vacant and unoccupied. A tax deed may be good color of title under those sections even though the judgment and precept upon which it is based are absolutely void. But it requires something more than mere color of title to constitute the bar contemplated by section 4. The latter section requires a prima facie title. For instance, it was held before the adoption of section 224 of the present Revenue act, that a tax deed without the judgment and precept upon which it is based is not a prima facie title such as is required by the act of 1835, of which said section 4 was a part. (Elston v. Kennicott, 46 Ill. 187.) By the terms of section 4 the officer must be ‘authorised’ to sell the land for the non-payment'of taxes. Unless the judgment and precept are produced no authority to sell is shown. It cannot be said that the language of the section refers to any deed which a public officer may make without pretense of authority. (Elston v. Kennicott, supra.) On the contrary, the deed is one which is made in pursuance of the authority required by law.” In Lightcap v. Bradley, 186 Ill. 510, the court said (p. 530) : “Under that section [section 4] something more than mere color of title is required. The title must be such as is prima facie good, and such as courts will enforce unless rebutted or destroyed by evidence of a better title.” The title of the widow and children of Edward S. Fletcher is based on the decree for partition rendered in a suit in which defendants in error were not parties and by which they were not bound. It did not, therefore, constitute prima facie title against them and could not be availed of under section 4 as a bar. The decree of the circuit court is reversed and the cause remanded to that court, with directions to enter a decree for partition in accordance with the prayer of the bill. The costs of this court will be adjudged against the plaintiffs in enor. Reversed and remanded, with directions.