Ragor v. McKay

Waterman, P. J. It is contended by appellant that there was no evidence tending to show that he Avas in possession of the promises at the time of the commencement of ■ the action of forcible detainer, February 27, 1888. Appellant not having denied possession, the testimony of Mr. Whipple as to what appellant said to him about his having bought and leased the house was not only sufficient evidence of his possession at the date of that conversation, but the state of affairs shown to have then existed, being in the absence of evidence to the contrary presumed to still continue, Avas enough to warrant the court in finding that appellant was in possession at the time of the beginning of the suit. It is true, as appellant contends, that while in an action of forcible detainer the right to possession alone is in question, yet title deeds may be introduced in evidence for the purpose of showing the character or extent of the possession claimed (Pearson v. Herr, 53 Ill. 144); but appellant failed to show that he took possession or was holding possession under his tax deed. Save as showing how he holds possession, his tax deed was not admissible at all; it could not be admitted as evidence of title because the title to the premises is not involved in an action of forcible detainer. Johnson v. Baker, 38 Ill. 98; Huftalin v. Misner, 70 Ill. 205; Thompson v. Sornberger, 59 Ill. 326; Spurck v. Forsyth, 40 Ill. 441; Smith v. Hoag, 45 Ill. 250; McGuirk v. Burry, 93 Ill. 118; Stillman v. Palis, 134 Ill. 532. Appellant’s apprehension that the judgment in this case may prove to have been a finding that his tax title is worthless, is unwarranted. The validity of titles can not be inquired into in an action of forcible detainer. There was evidence tending to show that appellant, by collusion with Bridget Tobin, the tenant of Martha McKay, appellee’s ancestor, obtained possession of the premises. Such being the case, appellant could not, until he had surrendered possession to those who claim under Martha McKay, set up a right to possession, otherwise acquired. Fortier v. Ballance, 5 Gilm. 41; Fusselman v. Worthington, 14 Ill. 135; Doty v. Burdick, 83 Ill. 473. The judgment of the Circuit Court is affirmed. Judgment ajjw'med.