Beaver v. Taylor (68 U.S. 637)

THIS was an action of ejectment, brought in the Circuit Court for the Southern District of Illinois, by Beaver, the plaintiff in error, against Taylor et al., to recover premises described in his declaration. The action was brought on the 17th July, 1854. The date is important. Upon the trial, the plaintiff having shown title in himself, the defendants relied upon the first and also upon the second section of the Statute of Limitations of the State of Illinois of March 2, 1839, as making a bar. The two sections were thus:

'First. Every person in the actual possession of land or tenements under claim and color of title made in good faith, and who shall, for seven successive years, continue in such possession, and shall also, during said time, pay all taxes legally assessed on such land or tenements, shall be held and adjudged to be the legal owner of said land or tenements to the extent and according to the purport of his or her paper title.

'Second. Whenever a person having color of title made in good faith, to vacant and unoccupied land, shall pay all taxes legally assessed thereon for seven successive years, he or she shall be deemed and adjudged to be the legal owner of said vacant and unoccupied land, to the extent and according to the purport of his or her paper title.'

The defendants, to show color of title, gave in evidence a certain deed. The deed itself was admitted to be void, but the good faith of the defendants and the sufficiency of the deed for the purpose for which it was offered were not disputed. The defendants also gave evidence tending to prove possession for more than seven years before the commencement of the suit.

In making proof of the payment of the taxes the defendants offered in evidence two receipts, without date, from the collector to one Gilbert, one for the State and county taxes, and the other for the road tax, of the year 1847. They proved that the 'collector had made a final settlement of the State and county taxes for the year 1847 with the proper officers;' and they gave evidence tending to prove that, during the years 1847 and 1848, Gilbert was the agent of Taylor & Davis (claimants of the premises under the statute) in respect of the taxes. The plaintiffs objected to the receipts as evidence, because it did not appear when the taxes were paid, nor that Gilbert had any connection with the color of title relied upon by the defendants. To meet the objection as to the time of payment, the defendants offered in evidence two letters from Gilbert to Taylor & Davis; one of the 10th of March, 1848, inclosing the receipt for the State and county taxes, and the other of the 4th of May, 1848, inclosing the receipt for the road tax. They offered also certain entries in an account book of Taylor & Davis, relating to the property in question and other property held by them in the same right. The letter gave an account in detail of Gilbert's debits and credits as agent in respect of the taxes, and referred particularly to the receipts in question. The books contained entries relating to the same subject and showing the recognition of his agency in the transaction. It appeared that the book was kept in Philadelphia, where Taylor resided, and that the clerk who made the entries was dead. Proof was offered of his death and of his handwriting. The letters and book were also objected to. The court admitted all the evidence and the plaintiff excepted.

The evidence being closed, the counsel of the plaintiff asked the court for nine different instructions to the jury; the only ones important to be here mentioned, however, being three, which were in regard to the defence arising under the second section of the Statute of Limitations already mentioned. In regard to such defence the instructions prayed for were these:

'1. That if the jury believe from the evidence that the land in controversy was vacant and unoccupied in the year 1847, they will find for the plaintiff, unless they also believe from the evidence that Taylor & Davis paid the taxes assessed on said lands for the year 1847, before the seventeenth day of July, 1847.

'2. That the second section of the act of 1839 does not begin to run until the payment of the first of the series of taxes required by that act, and the bar under that section is not complete until the end of seven years from the time of the payment of the first of said series of taxes.

'3. That to constitute a bar under the second section of said act of 1839, the payment of taxes must concur during seven successive years prior to the bringing of suit with the color of title; and it must also appear to the jury by the evidence that during such seven years the land was vacant and unoccupied, that such bar does not begin until the first of such series of taxes is paid by the person having color of title, and is not complete until the payment of taxes for seven successive years thereafter has concurred with such color of title, and that the burden of proof of such facts as constitute such bar is on defendants.'

The court refused to give these instructions, and instructed the jury as follows:

'Three things must unite to give a party the benefit of this section:

'1. He must pay all taxes levied on the land for seven successive years.

'2. The land must for the same time be vacant and unoccupied.

'3. He must during the same time have color of title to the land acquired in good faith.'

The court had previously charged that to bring a party within the first section:

'1. He must have actual possession of the land for seven successive years.

'2. He must pay all taxes levied on the land for the same seven years.

'This possession and payment must be under claim and color of title to the land made in good faith.'

The plaintiff excepted to the instructions given, including those in regard to the second section, and to the refusal to instruct as prayed. The jury found for the defendants.

On error here the matters complained of were the admission of the evidence excepted to, and the refusal to give the instructions as asked, and the giving of those that were made.

Mr. Grimshaw, for the plaintiff in error; Mr. Trumbull, contra.

Mr. Justice SWAYNE (stating the facts) delivered the opinion of the court.