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party defendant, the decree was, as against him, a conclusive adjudication, finding that the title to these lots was in Fernando Jones at the time of the commencement of that proceeding. It stands established, then, that at that time the title was in Jones, and the subsequent deed from Jones to Grant vested the title in the latter. This was the case made by the plaintiff in this suit. The defendant introduced no evidence. He made various offers of evidence,
which the court rejected, and of which he complains.
He offered to prove that there was no service on him in the first chancery suit, that the court had no jurisdiction over him, and that the entry of his appearance by an attorney was without authority, and was fraudulent. He was debarred from making this proof by the second above decree. That decree was in the case of a bill in chancery filed by him against Grant and others, for the purpose of impeaching the former decree upon these very grounds, among others. This decree, then, upon hearing and proofs heard, was one dismissing the bill for want of equity. Against the effect of the second decree it is urged that the plaintiff introduced in evidence the original bill, and the order dismissing the amended bill, and that, the amended bill not appearing in evidence, it does not appear what the amended bill contained which was so dismissed, and so the order of dismissal is without effect here. All the foundation for this objection is that the certificate of evidence recites that the plaintiff offered in evidence. the bill of complaint and decree in the case; the bill being set forth, and being of the character above stated. In the entitling of the cause in the decretal order it is styled "bill" and "amended bill," and the decree dismisses the amended bill at the complainant's costs for want of equity. The amendment of a bill does not put two bills into the case. There remains afterwards but one bill,-the bill as amended. Dismissal of the amended bill, here, meant dismissing the bill as amended. An amended bill
is considered as an original bill. Usborne v. Baker, 2 Madd. 379. In like manner, rejection was proper, of evidence of a deed from Mark Noble to defendant subsequent to the decree, and that the deed from Mark Noble to plaintiff in the latter's chain of title as found by the decree was a forgery, and that it was not executed by Noble. The genuineness and execution of the deed were established by the decree. Also the offer of evidence to prove title in defendant by 20 years' adverse possession was properly refused. The title being decreed in Jones in 1875, as against Bradish, no possessory title in favor of Bradish could begin to run prior to that decree, and, 20 years not running since the decree, there could be no evidence of such a possessory title. And the same is to be said of the offer of proof that one Callaghan had been in possession of part of said lots 7 and 8 for 28 years continuously, and had paid taxes on the same during all that time. And so the offer of a deed from Daniel T. Elston to one Barton, made in 1883, was properly rejected; Elston being the plaintiff in the suit in which the decree first named was made. We find no error in the exclusion of evidence. The court refused all the instructions asked by the defendant, and denied him the privilege to argue the case to the jury. The rule is familiar that harmless errors form no ground for reversing a judgment. The giving of instructions in this case, or the defendant's addressing the jury, could have been of no possible legitimate benefit to him. All the evidence was the two decrees and bills, and the deed. All the question there was in the case was the legal effect of these documents. That was a question for the court to decide. This proof showed a complete title in the plaintiff, and, under the law, a verdict for the plaintiff followed as the unavoidable result. The defendant suffered no harm from the ruling of the court.
The judgment must be affirmed.
(118 Ill. 503)
BURGETT v. TALIAFERRO.
(Supreme Court of Illinois. November 13, 1886.)
1. TAXATION-TAX TITLE-LESSEE-TRUSTS.
A lessee who, in consideration of the lease and of possession, agrees, inter alia, to pay taxes, cannot acquire a tax title adverse to his lessor. He will hold his tax title in trust for the lessor; and his grantee will stand in no better position.
2. JOINT TENANTS AND TENANTS IN COMMON-ACQUIRING OUTSTANDING TITLE.
Where one of several co-tenants acquires an outstanding title before he has claimed to hold adversely to his co-tenants, he will take for the benefit of all the co-tenants, subject to their liability to contribute to the cost.1
3. DEED-VALIDITY-GRANTOR NOT IN POSSESSION.
A deed made after the grantor has surrendered possession to third persons claiming ownership, and after such third persons have entered into possession claiming adversely to all the world, gives no title.
4. STATUTE OF LIMITATIONS-WHEN BEGINS TO RUN-CO-TENANTS-DISSEIZIN.
The deed of a co-tenant purporting to convey the entire title to the tract of land, recorded, and followed by the exclusive possession of the grantee, is, from the time of such recording, and transfer of possession, a disseizin of the other co-tenants, and the statute of limitations will begin to run against their right of action from that time.2
5. SAME-COLOR OF TITLE.
Color of title, under the statute of limitations, (2 Starr & C. St. c. 83, pars. 6, 7,) does not mean actual title, nor does knowledge of an outstanding title affect it, nor indicate bad faith in a purchaser, unless accompanied by improper means to defeat it.3
Appeal from Mercer.
Frederick T. Burgett filed his petition in the circuit court of Mercer county on the thirteenth day of October, A. D. 1885, praying partition of lot 10, in block 10, in Keithsburg. He made Benjamin C. Taliaferro, Maria Haralson, Amanda Armindale, Alvin Patterson, the unknown heirs at law of David Patterson, deceased, and David Wolfe, defendants, and claimed that the lot was owned thus: Frederick T. Burgett, 22-110 parts; Benjamin C. Taliaferro, 55110 parts; Maria Haralson and the unknown heirs at law of David Patterson, deceased, each 11-110 parts; Amanda Armindale and Alvin Patterson, each 11-220 parts. The petition was subsequently amended, alleging a conveyance by Benjamin C. Taliaferro of his interest to Robert B. Taliaferro.
Benjamin C. Taliaferro answered, alleging that he bought the entire lot in good faith from Jane Patterson, and took a warranty deed from her therefor, on the twenty-fifth day of August, A. D. 1874, which he caused to be recorded in the proper office on the twelfth day of October, A. D. 1874; that he immediately entered into the actual possession of the lot, and retained the same until after the petition was filed, and during all that time paid all the taxes assessed against the lot; and he therefore set up and relied upon the first section of the "Act to quiet possessions and confirm titles to land," approved March 2, 1839. Purple's Real Estate St. 426. The answer of Robert B. Taliaferro claimed that he purchased in good faith, and was the owner of the lot. Amanda Armindale and Alvin Patterson answered jointly and severally, alleging that the lot was sold on the tenth of June, A. D. 1850, for the taxes of 1849, to Benjamin D. Ellett, and that a deed was made to him by the sheriff of Mercer county on the second day of February, A. D. 1853; that on the sixteenth day of March, A. D. 1854, Ellett sold the lot to James Patterson for $100, and conveyed the same to him; that Patterson bought in good faith, be
1See Holterhoff v. Mead, (Minn.) 29 N. W. Rep. 675, and note.
2 See Comer v. Comer, (Ill.) 8 N. E. Rep. 796, and note.
See Swift v. Mulkey, (Or.) 12 Pac. Rep. 76, and note; Sims v. Gay, (Ind.) 9 N. E. Rep. 120.
lieving that he was acquiring title to the same, and went into possession immediately afterwards, under said deed, claiming title in fee-simple in his own right to the lot, and that he continued to occupy the same from that time until his death in 1861, and paid all taxes thereon from A. D. 1853 to A. D. 1860, inclusive; that he devised the lot to his mother, Jane Patterson, during her life-time, and the remainder after her death to the defendants Amanda and Alvin. The defendant Alvin Patterson also filed a cross-bill, alleging the same facts as alleged in the joint and several answer of himself and Amanda Armindale, and praying certain specific relief. Answer was filed by Benjamin C. and Robert B. Taliaferro, putting in issue the allegations of the crossbill, and replications were filed to the answers to the original and cross bill. At the April term, A. D. 1886, of the Mercer circuit court, the cause was heard on bill, answer, cross-bill, and answer, and evidence then submitted; and the court thereupon decreed that both the original and cross bills be dismissed.
The facts in evidence about which there is no dispute are: Matthew Patterson became the lawful owner of the lot in controversy in A. D. 1848. In 1849 he built a brick house upon it, but in the fall of that year, and before the house was finished, Matthew rented the house and lot to B. D. Ellett for two years, or until Matthew should return from California, to which place he was intending to soon depart. Ellett, in consideration of the use of the property, paid Matthew in advance $100, and agreed to finish the building, take care of the property, pay the taxes, and settle the balance on Matthew's return. Ellett then went into the possession of the property. On the twentyfifth day of February, A. D. 1850, Matthew conveyed the lot to Stephen S. Phelps by a deed absolute on its face, but in reality to secure the payment of a sum of borrowed money. Soon after this, in the spring of 1850, Matthew and his father and his brother John went to California. Not long afterwards his father died. Then, either in 1850 or in 1851, Matthew died intestate; never having returned from California. Matthew had never been married, and hence left neither widow nor lineal descendants surviving him. He left, as his heirs at law, his mother, Jane Patterson, his brothers, David, John, James, William, Robert, and Charles, and his sisters, Maria, now Haralson, Eliza, now Walker, and Jane, now Lloyd.
David had gone to Canada before Matthew went to California, and has never been heard of since, and so has long since, in legal estimation, been presumed to be dead. John died soon after Matthew died, leaving neither widow nor lineal descendants, but his mother and his remaining brothers and sisters, above named, his heirs at law.
On the tenth of June, A. D. 1850, the lot was sold to B. D. Ellett for the taxes of 1849. No redemption being effected, the sheriff conveyed the lot to Ellett on the twenty-second day of February, A. D. 1853, and this deed was recorded February 28, 1853. On the twenty-eighth day of May, 1852, Stephen S. Phelps conveyed the lot by warranty deed to the heirs at law of Matthew Patterson, deceased, and the deed was duly recorded August 4, 1852. B. D. Ellett conveyed by quitclaim deed to James Patterson on the sixteenth day of March, A. D. 1854, which deed was recorded on the twenty-fourth day of May, 1861.
James died testate in June, 1861, leaving a widow, Amanda, since intermarried with a man named Armindale, and a son named Alvin, surviving him. By his last will and testament he devised and bequeathed the rents and profits of the house on this lot to his mother, Jane Patterson, during her life, and he devised the lot, subject to this charge, to his wife, Amanda, and his son, Alvin, which will was duly probated in the proper office on the eighteenth of June, 1861.
William Patterson conveyed and quitclaimed the lot to his mother, Jane Patterson, by deed dated August 1, 1872, which was duly recorded July 17,
1874. Charles Patterson conveyed and quitclaimed the lot to his mother, Jane Patterson, September 12, 1872, which was also recorded July 17, 1874. Jane Lloyd conveyed and quitclaimed the lot to her mother, Jane Patterson, on the first day of August, A. D. 1872, and this was recorded on the seventeenth of July, 1874. On the date therein stated the following agreement was made:
"STATE OF ILLINOIS, MERCER COUNTY, KEITHSBURG, June 16, 1874. "This is to certify that I have this day sold to B. C. Taliaferro all my interest that I now hold in lot ten, (10,) in block ten, (10,) in the town of Keithsburg, in said county, said interest consisting of what I claim as the heir of Matthew R. Patterson, and the interest of four of my children as heirs of Matthew R. Patterson; and I do further agree and bind myself to get a deed from my daughter Eliza Walker, by the first day of August next, for her interest in said lot, and I do hereby put the said B. C. Taliaferro in possession of said lot, and to make him, if necessary, any other deed for the conveyance of my interest in said property, or what other interest I may hereafter acquire, and for which property, so sold as aforesaid, the said B. C. Taliaferro binds himself to pay to the said Jane Patterson in money, on the first day of August, A. D. 1874, if necessary, and if not, on the first day of September next, the sum of one hundred dollars, for which he has given his promissory note, payable on the first day of August, A. D. 1874.
"Given under my hand and seal this sixteenth day of June, A. D. 1874. "JANE PATTERSON."
Acknowledged before T. S. Cummins, J. P., the same day; recorded July 17, 1874.
On the twenty-fifth day of August, A. D. 1874, Jane Patterson assumed to convey the lot to Benjamin C. Taliaferro by warranty deed, and it was duly recorded on the twelfth day of October, 1874; and on the twelfth day of October, A. D. 1885, Benjamin C. Taliaferro conveyed the lot to Robert B. Taliaferro by quitclaim deed. On the seventeenth of November, A. D. 1883, Robert Patterson assumed to convey the lot by quitclaim deed to Frederick P. Burgett, and on the third day of December, A. D. 1883, Eliza Walker also assumed to convey the lot by quitclaim deed to Frederick P. Burgett.
It was agreed that James Patterson paid all taxes assessed on the property from 1853 to 1861, inclusive; that Jane Patterson paid all taxes assessed thereon from 1861 to 1872, inclusive; and that Benjamin C. Taliaferro paid all taxes levied and assessed on the property for the years A. D. 1874 to A. D. 1884, inclusive.
Bassett & Wharton, for appellant.
We admit that, under our limitation law, a co-tenant who enters claiming the whole of the premises under some other title may oust his co-tenant, and defeat his title. But when the co-tenant enters, claiming under the common title, or without any other claim of title, then he cannot claim adversely. Busch v. Huston, 75 Ill. 347; Ball v. Palmer, 81 Ill. 370; Todd v. Todd, 7 N. E. Rep. 583; McClellan v. Kellogg, 17 Ill. 504. Jane Patterson's occupation, therefore, was not adverse to the other heirs of Matthew Patterson; and the same is true of B. C. Taliaferro, since, according to the terms of his contract with Jane Patterson, she was to convey to him only such title as she had. He entered, therefore, as co-tenant with such of the heirs as had not conveyed their interests to Jane Patterson. The warranty deed afterwards given by Jane Patterson to Taliaferro did not make Taliaferro's holding adverse to such heirs from the date thereof; for, having entered into possession as co-tenant, any purchase of title made afterwards inures to the benefit of all the co-tenants. Freem. Co-tenancy, §§ 158, 166; Bracken v. Cooper, 80 Ill. 225; Titsworth v. Stout, 49 Ill, 78.
The doctrine of adverse possession is to be taken strictly, and must be with
such circumstances as are capable, in their nature, of notifying mankind that the person is on the land claiming it as his own, and it must be hostile in its inception. McClellan v. Kellogg, 17 Ill. 504; Ambrose v. Raley, 58 Ill. 509; Medley v. Elliott, 62 Ill. 535; Busch v. Huston, 75 Ill. 347.
Taking the original contract into consideration, and all the circumstances, it looks as though Taliaferro proceeded as he did to allay suspicion, and to obtain the title by limitation through that means. This was bad faith, and would not give color of title. Bowman v. Wettig, 39 Ill. 416; Dalton v. Lucas, 63 Ill. 337; O'Halloran v. Fitzgerald, 71 Ill. 53; McCagg v. Heacock, 34 Ill. 476; Hardin v. Crate, 60 Ill. 215; Hardin v. Gouveneur, 69 Ill. 140; Cooter v. Dearborn, 4 N. E. Rep, 391; Davis v. Hall, 92 Ill. 90.
John C. Pepper, for appellee.
As to the case on the original bill, we say Mr. Taliaferro held a warranty deed for the property, made in August, 1874. He went into possession at that date, claiming to own and hold the whole of the property in his own right, against all comers, and he commenced the payment of taxes in 1875, so that the title, possession, and payment of taxes were all in him in 1876. The statute of limitations therefore began, at that time, to run against his co-tenants, if they were his co-tenants. Freem. Co-tenancy, c. 10, pars. 221-224; Wood, Lim. § 266; Marcy v. Marcy, 6 Metc. 360; Kittredge v. Locks & Canals, 17 Pick. 246; Miller v. Miller, 60 Pa. St. 16; Clark v. Vaughan, 3 Conn. 191; Goewey v. Urig, 18 III. 242; Hinkley v. Greene, 52 Ill. 242; Busch v. Huston, 75 Ill. 343; Lavalle v. Strobel, 89 Ill. 384; Dugan v. Follett, 100 Ill. 588.
Notice of others' rights, even by record, can cut no figure on questions arising under the statute of limitations. Woodward v. Blanchard, 16 Ill. 433; Dickenson v. Breeden, 30 Ill. 280; Jandon v. McDowell, 56 Ill. 53.
SCHOLFIELD, J. The deed from Jane Patterson to Benjamin C. Taliaferro, being a warranty deed purporting to convey the lot in controversy in feesimple, is at least color of title. Dickenson v. Breeden, 30 III. 326. The payment of taxes by Taliaferro from A. D. 1874 to 1884, inclusive, being admitted, it only remains to ascertain whether he acquired the deed from Jane Patterson in good faith, and, if so, whether he was in possession under that deed. The execution of the deed, and subsequent possession of the property, and payment of taxes thereon by the grantee, create the presumption that the grantee obtained the deed in good faith, and that he is in possession under the deed; and it devolves on those claiming adversely to prove, either that the deed was not obtained by the grantee in good faith, or that the possession was not under the deed. Dickenson v. Breeden, supra; McConnel v. Street, 17 Ill. 253; Hardin v. Gouveneur, 69 Ill. 140; Davis v. Hall, 92 Ill. 85.
A point is made on behalf of Amanda Armindale and Alvin Patterson, which, in the order of precedence, is entitled to be first noticed: that the first section of the limitation act of 1839 can have no application here, because, at the time Jane Patterson conveyed to Benjamin C. Taliaferro, she had only a life-estate, and, she being still alive, the statute has not commenced to run against those having the estate in remainder, since they have never had the right to enter into the possession. Without saying whether this position is tenable as against one obtaining a warranty deed in fee-simple, in good faith, without notice, it is enough to say that, in our opinion, it is not sustained by the facts proved, as disclosed by this record.
The contention is predicated upon the sheriff's deed to B. D. Ellett, and the deed of B. D. Ellett to James Patterson, and the will of the latter purporting to give a life-estate in the property to Jane Patterson. It will be seen, by referring to the statement preceding this opinion, that in 1848 Matthew Patterson, the brother of James and the son of Jane, became the owner of this lot in fee-simple. In 1849 he commenced building a brick house upon it; but in the fall of that year, and before the house was finished, he rented the lot v.9N.E.no.4-22