Kimmel v. Frazer

Opinion of the Court, Hakker, P. J. This is an action of forcible entry and detainer for ten acres of land in Eichwoods Township, Peoria County, brought by appellee against appellant. Appellee claimed under a tax title and a prior possession in her daughter, Josephine Frazer, The land originally belonged to one Harriet Frazer. The husband of appellee was her agent and as such paid taxes, leased it and looked after it for sixteen years. He allowed the land to be sold for taxes, and appellant became the holder of a tax sale certificate for a part of the land, sold in 1883, and a tax sale certificate for the remainder, sold in 1884. These certificates were sold and assigned to Josephine Frazer, the daughter of the agent, and,, there being no redemption, deeds were executed to her in 1885 and 1SS6. This title she held until 18SS, when she quit-claimed to her mother, Busan Frazer, who brought this suit. Deeds offered by the defendant to show extent of possession, show conveyance by Harriet Frazer and husband to F. E. Barber, of date April 4, 1S39', conveyance by F. E. Barber and wife to Charles A. Kimmel, April, 1890.- Kimmel also showed possession under the deeds. The proofs fail to show that Susan Frazer, or her grantor, the daughter, Josephine, ever had possession of the land after the tax title was procured. There was some confusion in the testimony as to occupancy of the land when D. C. Frazer, the agent of Harriet Frazer, and the father of Josephine, was controlling it. Under his supervision parties went upon the land, made improvements, and became tenants. "We are satisfied, however, that this was while he was acting as the agent of Harriet, and before the tax title matured. Such occupants were tenants of Harriet Frazer, appellant’s grantor. Kimmel found the land unoccupied and took possession. This he had the right to do. He did not invade the possession of appellee or any one. We do not care to discuss, in this opinion, the good faith of the manceuvers of D. C. Frazer and his daughter, by means of which the tax title was procured. That can be considered when that title shall be tested in an appropriate form of action. For the reason that the evidence fails to show that either appellee or her grantor ever had possession of the land, the judgment must be reversed and the cause remanded.