Lewis v. Barnhart

SAME

v. PHILLIPS et al.

No. 1,212.

SAME

v. JOHNSON et al.

No. 1,213.

SAME

v.

DIRKS et al.

No. 1,214.

SAME

v.

DYE et al.

No. 1,215.

SAME

v.

BONER et al., (two cases).

Nos. 1,216, 1,217.

April 25, 1892.

[Syllabus from pages 56-58 intentionally omitted]

These actions of ejectment were brought in the year 1889. The lands in controversy are parts of a larger tract of 1,600 acres in Woodford county, Ill., entered by Romeo Lewis, in the year 1838, at the land office in Springfield, in that state, and of which he was seised in fee, by a patent from the United States, at the date of his will, January 8, 1842, as well as when he died, at his residence in Oxford, Butler county, Ohio, on the 24th day of June, 1843.

The parties, in writing, waived a jury, and the cases were severally tried by the court, which made a special finding of facts, on which judgment was rendered for the respective defendants. Each action was held to be barred by the statute of limitations of Illinois protecting the actual possession, continued for seven successive years, of land or tenements, under claim and color of title made in good faith, and accompanied by the payment during that period of all taxes legally assessed on them. The principal contention of the plaintiffs in error, who were the plaintiffs below, upon this point, is that limitation did not commence to run against them until shortly before these actions were instituted, and consequently the statute has no application.

In case 1,211 (Lewis v. Barnhart) the facts upon which the judgment was based were, substantially, as follows:

By his will, which was admitted to probate and recorded in the county of his residence in Ohio, the testator directed his interest in lands in the territory of Florida, and in the states of Arkansas and Mississipp, to be sold, and the proceeds, together with moneys that might be derived from other sources, applied to the payment of his just debts. After making certain bequests of money to his mother, nieces, and others, the will proceeds: 'I further give and devise to my dearly beloved wife, Jane N. Lewis, and to the heirs of her body, my houses and lots in the town of Oxford, Butler county, Ohio, and all the residue of my lands in the states of Indiana and Illinois, and all the rest, residue, and remainder of my personal estate, goods, and chattels of every kind and description whatsoever, to be equally divided between them, to share and share alike; and, lastly, I hereby appoint my said beloved wife, Jane N. Lewis, sole executrix of this, my last will and testament, hereby revoking all my former wills by me made; and I do hereby ratify and confirm this and no other to be my last will and testament.'

The testator left no issue surviving him. Three children died prior to the date of the will. The fourth, born April 15, 1843, lived only a few days. He had no sisters. But he had four brothers, three of whom died before he did, while the fourth survived him. His wife was only 34 years old at the date of the will. She remained a widow, and died in July, 1888, aged 80 years, leaving no issue.

The plaintiffs are the direct descendants of the testator's brothers, and his only heirs at law.

The widow qualified, in the proper court of Ohio, as executrix, and, in open court, September 25, 1843, elected to take under the will.

The lands in controversy were assessed for taxation in Woodford county for the years 1844 and 1845 in the name of Romeo Lewis as patentee and owner. They were then 'wild lands,' uncultivated, of little value, and in a new and sparsely settled country. On the 13th of October, 1846, they were sold for the taxes of 1845, Guernsey Y. Roots, the husband of a sister of Jane N. Lewis, becoming the purchaser. He knew, at the time, of the existence and probate of the will of Romeo Lewis, as well as of the appointment of Jane N. Lewis as executrix, and of her election to take under the will. But the relationship of Roots, to Mrs. Lewis was not known to the defendants, or to any one under whom they claim.

The records of the circuit court and recorder's office in Woodford county, as they existed at the time of the trial, did not show any judgment entered against the lands for the taxes of 1845. Nevertheless, the sheriff, by deed of May 16, 1849, conveyed them to Jane N. Lewis, as assignee of Roots' certificate of purchase; the deed reciting that 'at the September term, 1846, of the circuit court of Woodford county, a judgment was obtained in favor of the state' for the taxes, interest, and costs assessed upon the lands for the year 1845, and that the sheriff, on the 13th of October, 1846, by virtue of a praecipe issued September 20, 1846, exposed them for sale, in conformity with the requirements of the statute, 'for the satisfaction of the judgment so rendered as aforesaid.' This deed was duly acknowledged and recorded on the day it bears date.

By power of attorney given May 7, 1856, and duly recorded July 24, 1856, Harry Lewis, of Ohio, the surviving brother of the testator, was constituted by Mrs. Lewis her attorney to sell and convey in fee simple, by deed of general warranty, these and other lands in Woodford county, Ill. In virtue of this power of attorney, Lewis executed to Absalum Doherty a bond, dated June 21, 1856, for a conveyance by deed of general warranty, the consideration recited being $5,600, for which Doherty gave his note. This bond was recorded July 7, 1856. In that year Doherty went into possession and improved the lands, claiming them under the above contract and bond. Within two years after taking possession he inclosed them with fences, built two houses upon them, and put a large part of them in cultivation.

On the 15th day of August, 1866, what purports to be a copy of the will of Romeo Lewis was recorded in one of the books containing the record of deeds in the recorder's office of Woodford county.

Mrs. Lewis, in execution of the contract with Doherty, made to him, August 31, 1866, a warranty deed. He resided upon the lands continuously until his death, on the 15th of September, 1876. He left a widow and a son as his sole heir, who remained in possession until the 4th day of February, 1881, when they united in a conveyance to Lawrence Gasner. The latter held possession under that conveyance until November 1, 1881, when he conveyed by warranty deed to the defendant Gish, who has continued in possession under that deed. The defendant Barnhart is only a tenant of Gish.

In 1858, Doherty paid the taxes on the lands for the year 1857, and he and those claiming under him paid all the taxes assessed against them up to the commencement of this action.

It was stipulated between the parties, and the court found, that neither the defendant Gish, nor his grantor, nor any one under whom he claims, (except Jane N. Lewis,) had, prior to September 1, 1889, any notice that Romeo Lewis was seised of these lands, at the time of his death, by patent from the United States, other than such as may have been conveyed, constructively, at the date of the above bond and deeds, by the book of land entries in the office of the county clerk of Woodford county, Ill., furnished by the auditor to the county clerk for purposes of taxation; or by the fact that the lands were assessed for taxation in 1845 in the name of Romeo Lewis, and were sold for the nonpayment of taxes in 1846; or by the record of a deed from Jane N. Lewis to John G. Mohr, dated February 8, 1853, and recorded in that county, which described the land thereby conveyed (what particular lands the record does not show) as 'said tract of land having been held by Romeo Lewis, the deceased husband of the grantor, and to her devised in the last will and testament of said Romeo Lewis.' Nor did the defendant, or any of the persons through whom he claims title, (except Jane N. Lewis,) have any knowledge whatever of the existence or probate of the will of Romeo Lewis prior to the time when what purported to be a copy of it was recorded, as above stated, in Woodford county, unless notice was to be imputed to them by the record of the above deed from Jane N. Lewis to Mohr, or by the record and probate of the will in 1843 in Butler county, Ohio.

It was further stipulated and found that 'the defendants have a complete chain of title, properly recorded at the date of said deeds or bonds for deeds, to the lands described in the declaration in this case, under deeds with full covenants of warranty, from Jane Lewis to themselves, which deeds were also properly recorded at the dates of the execution thereof, and that said lands have been actually occupied and resided upon by the defendants and their grantors from the date of the purchase thereof, as shown by said deeds from Jane N. Lewis, and that they have severally paid all taxes assessed on said lands from the date of said deeds to the present time.' The other cases named in the beginning of this opinion depend upon facts similar to those above set forth. The defendants, in each case, hold under bonds and deeds, or under deeds only, from Jane N. Lewis, which were duly recorded, and, prior to the commencement of these actions, they had been in actual possession, paying all taxes assessed on the lands occupied by them, respectively, for periods ranging from 29 to 33 years.

S. D. Puterbaugh, for plaintiff in error.

[Argument of Counsel from pages 62-68 intentionally omitted]

''>>R. E. Williams'', for defendants in error.

Mr. Justice HARLAN delivered the opinion of the court.