In 1838, R. L., a resident of Ohio, received a patent from the
United States of public lands in Illinois. In 1842, he made his
will in Ohio, where he continued to reside until his death in 1843.
After disposing of other property, he devised his Illinois lands
and bequeathed the remainder of his personal estate to his wife, J.
N. L., and to the heirs of her body, to be equally divided between
them, share and share alike, and he appointed her sole executrix of
the will. He left no issue surviving him, although he had had
children, but he left brothers and the issue of deceased brothers.
His will was duly proved in Ohio, and the widow, who elected to
take under it, qualified as executrix in 1843. In 1846, the
Illinois lands
were sold for nonpayment of taxes assessed in 1845. The county
records show no judgment for the tax sale. The lands were purchased
at the tax sale by a brother-in-law of the widow, who assigned the
certificate to the widow, and the deed was made to her directly.
She then, through her attorney in fact, made sales of various
tracts of this land at various times, until all were disposed of.
The purchasers duly entered into possession, and took title, and
they and those claiming under them continued in possession and paid
all taxes on the lauds occupied by them respectively for periods
ranging from 29 to 33 years. In 1853, a deed of a part of the tract
from the widow to one M. was put on record, in which it was recited
that the land conveyed by that deed had been held by R. L. and had
been devised by him. The county records also contained a copy of
the Book of Land Entries, furnished by the auditor to the county
clerk for the purpose of taxation, but with these exceptions those
records contained nothing pointing to the patent to R. L., or to
his will, or to the interest devised by it to his widow, J. N. L.,
until 1866, when what purported to be a copy of the will was filed
in the office of the recorder of the county. To this copy were
attached copies of the affidavits of the subscribing witnesses to
the will in proof of its execution and a certificate signed by the
judge and by the clerk of the probate court in Ohio that these were
copies of the will and affidavits and order and proceedings taken
from the originals in that court; but there was no copy of the
Page 145 U. S. 57
order and of the proceedings admitting the will to probate. The
widow died in 1888, not having married again and leaving no issue.
Up to that time, no one of the several purchasers nor anyone
claiming under them had actual notice that R. L. had been seised of
these lands through a patent from the United States, or of his
will, or of its provisions, nor any constructive notice thereof
other than is to be implied from the public records of the United
States and of the county. On the death of the widow, the direct
descendants of the brothers of R. L., being his only heirs at law,
brought these actions of ejectment against the several persons
occupying and claiming title to said several tracts of land, to
recover possession of the same, maintaining that the tenancy of the
widow and of all claiming under her was a life estate for the term
of her life, and that the statute of limitations did not begin to
run against the remaindermen until the expiration of the life
estate.
Held:
(1) That the sheriffs deed for the land sold for taxes, being
regular on its face and purporting to convey the title to the land
described in it, was sufficient color of title to meet the
requirements of the statute of limitations of the state of Illinois
without proof of a judgment for the taxes.
(2) That the book of land entries in the county clerk's office
furnished by the auditor to the county clerk for the purposes of
taxation was not constructive notice of the issue of the patent for
the public lands to R. L.
(3) That the will of R. L. was not authenticated and certified
by the officers of the probate court in Ohio in a manner to entitle
it to record under the statutes of Illinois, and that the record of
it there, without proper proof of its probate in Ohio, was not
constructive notice of it and of its contents.
(4) That the recital in the deed from J. N. L, to M. in 1853 was
at most notice of the facts recited in it to the grantee and those
clamming under him.
(5) That, by the law of Illinois, the actual possession of the
several defendants, for more than seven successive years prior to
the commencement of these actions, of the lands in controversy
under claim and color of title made in good faith -- that is, under
deeds purporting to convey the title to them in fee, and the
payment of all taxes legally assessed on them, without notice,
actual or constructive, during that period, of any title to or
interest in the lands upon the part of others that was inconsistent
with an absolute fee in their immediate grantors, and in those
under whom such grantors claimed, entitled them to be adjudged the
legal owners of such lands according to their respective paper
titles, even as against those, if any, who may have been entitled
by the will of R: L. to take the fee after the death of his widow
without heirs of her body.
(6) That, in view of the foregoing, it was unnecessary to pass
upon the nature of the estate devised to J. N. L.
Page 145 U. S. 58
Ejectment. The Court stated the case as follows:
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, Illinois, 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 Mississippi 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,
Page 145 U. S. 59
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 anyone 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,
Page 145 U. S. 60
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, Illinois. 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 enclosed 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.
Page 145 U. S. 61
It was stipulated between the parties, and the court found, that
neither the defendant Gish nor his grantor nor anyone 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, Illinois, 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. "
Page 145 U. S. 62
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.
Page 145 U. S. 68
MR. JUSTICE HARLAN delivered the opinion of the court.
By the statutes of Illinois in force when the will of Romeo
Lewis was made and took effect, it was provided that
"in cases where, by the common law, any person or persons might
hereafter become seised in fee tail of any lands, tenements, or
hereditaments, by virtue of any devise, gift, grant, or other
conveyance hereafter to be made, or by any other means whatsoever,
such person or persons, instead of being or becoming seised thereof
in fee tail, shall be deemed and adjudged to be and become seised
thereof for his or her natural life only, and the remainder shall
pass in fee simple absolute to the person or persons to whom the
estate tail would on the death of the first grantee, devisee, or
donee in tail first pass, according to the course of the common
law, by virtue of such devise, grant, or conveyance."
Act of January 31, 1827, Rev.Laws Ill. 1833, pp. 129, 131,
§ 6; Rev.Stats. 1845, c. 24, § 6; Rev.Stats. 1874, c. 30,
§ 6. The court below held (43 F. 854) that Mrs. Lewis, under
the will of her husband, would have taken at common law, only an
estate in fee tail -- that is, an estate "confined in its descent
to the posterity of some individual, so as to cease upon failure of
such posterity," citing Burton on Real Property 4. After observing,
in the words of the same author, that, upon a devise to a person
and his issue or children, the construction varies according to the
circumstances, and that
Page 145 U. S. 69
if the party have issue or children at the time when the devise
is made, they will take estates for their lives jointly with their
parent, but if he had no issue at that time he takes an estate
tail, the court said that under the above statute Mrs. Lewis took
only an estate for her natural life, and at her death, in default
of heirs of her body, the heirs at law of the testator took the
estate in fee. But in view of the admitted facts, it was held that
the defendants were protected by the statute of Illinois,
prescribing the periods within which actions for the recovery of
lands may be brought.
Much of the elaborate argument submitted by counsel is devoted
to an inquiry as to the nature of the estate that Mrs. Lewis took
under the will of her husband, the plaintiffs insisting that the
court below correctly interpreted the will of the testator in
connection with the statute. The defendants insist that the devise
to Mrs. Lewis and to the heirs of her body was intended to be a
devise to her and to the children of herself and the testator, as a
class of persons to take at the death of the testator, and that
she, as the only survivor at his death, of that class, took the
whole estate absolutely. The defendants further insist that even if
the estate did not wholly vest at the death of the testator in Mrs.
Lewis, as the survivor of the class of persons who were the
declared objects of his bounty, the fee did not remain in abeyance
until her death, but vested at his death in those who were then his
heirs at law, although such estate was liable to be divested on the
birth of an heir to the body of the life tenant.
These questions have been discussed by counsel with marked
ability. But it will not be necessary to pass upon them if, as is
contended, these actions under any construction of the will are
barred by the statute of limitation of Illinois. To this question
of limitation we will therefore direct our attention.
The statute just referred to, as it appears in Revision 1845,
Tit. Conveyances, provides:
"SEC. 8. Every person in the actual possession of lands 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 lands or tenements,
Page 145 U. S. 70
shall be held and adjudged to be the legal owner of said lands
or tenements, to the extent and according to the purport of his or
her paper title. All persons holding under such possession, by
purchase, devise, or descent before said seven years shall have
expired, and who shall continue such possession, and continue to
pay the taxes as aforesaid, so as to complete the possession and
payment of taxes for the term aforesaid, shall be entitled to the
benefits of this section."
"SEC. 10. The two preceding sections shall not extend . . . to
lands or tenements when there shall be an adverse title to such
lands or tenements, and the holder of such adverse title is under
the age of twenty-one years, insane, imprisoned,
feme
covert, out of the limits of the United States, and in the
employment of the United States or of this state,
provided
such person shall commence an action to recover such lands or
tenements, so possessed as aforesaid within three years after the
several disabilities herein enumerated shall cease to exist, and
shall prosecute such action to judgment. . . ."
These provisions first appeared in the Act of March 2, 1839,
entitled "An act to quiet possessions and confirm titles to land,"
and are preserved in the Act of April 4, 1872, title Limitations.
Purple's Real Estate Stat.Ill. p. 426; Rev.Stats. 1845, p. 104, c.
24, § 8; Rev.Stats. 1872, p. 674, c. 83, § 6; 2 Starr
& Curtis, p. 1539.
Considering the different objects of sections 8 and 9, the
Supreme Court of Illinois, in
Dunlap v. Daugherty, 20 Ill.
398, 403, said:
"By the eighth section the person must be in possession under
claim and color, and may pay taxes under such claim and color, of
title for the required period of time; while by the ninth section,
he is not required to have possession, nor permitted to hold or pay
taxes under a person having color, but must himself have the color,
of title and pay the taxes. This section does not permit a person
claiming under color to rely upon the statute. But the eighth
section, by its phraseology, does permit the person claiming under
the color of title to hold the possession and to pay the taxes, for
his claim and possession, and the color of title, when united, make
the claim and color of title and the possession required by the
statute. . . . Justice would require that more protection
should
Page 145 U. S. 71
be given to the actual occupant, who expends his money and labor
in improving the soil, and pays the taxes for the required period,
than to the person who only pays the taxes, without occupation, for
the same length of time."
See also Cofield v. Furry, 19 Ill. 183;
Daret v.
Marshall, 20 Ill. 227;
Newland v. Marsh, 19 Ill.
376.
Under the stipulations of the parties and the findings of fact,
there can be no doubt as to the nature of the possession of the
respective defendants. It was an actual continuous possession under
bonds and conveyances, promptly recorded, accompanied by the
payment of all taxes assessed on the lands during the period of
such possession. If, within the meaning of the statute, such
possession was "under claim and color of title made in good faith,"
then the cases before us come within the very words of the statute,
and the defendants, respectively, are entitled to be adjudged legal
owners of the lands according to the purport of their respective
paper titles, unless, as contended, limitation did not run against
the plaintiffs until after the death of Mrs. Lewis.
That the defendants have been in actual possession for the
required time, under claim and color of title made in good faith,
is clearly established. It is true that Mrs. Lewis, under whom the
several defendants claim, held under a tax deed, and that such a
deed, when relied on as evidence of paramount title, must be
supported by a valid judgment for the taxes, and a proper precept
authorizing the sale.
Holbrook v. Dickinson, 46 Ill. 285;
Gage v. Lightburn, 93 Ill. 248, 252;
Pardridge v.
Village of Hyde Park, 131 Ill. 537, 541;
Gage v.
Bani, 141 U. S. 344,
141 U. S. 351.
And it is also true that the records before us do not show any
judgment for taxes against these lands, followed by precept
authorizing their sale, and only show a sheriff's deed to Mrs.
Lewis, reciting a judgment and precept. But a sheriff's deed for
land sold for taxes, regular on its face, and made to one who was
under no obligation to pay the taxes, will, as between the grantee
and the taxpayer, constitute, without proof of a judgment for the
taxes, such color of title as will meet the requirements of the
statute of limitations. It has been long settled in Illinois
that
Page 145 U. S. 72
any deed or instrument in writing, no matter on what founded, if
regular on its face and purporting to convey the title to land of
which a description is given, is sufficient color, under the
limitation act of 1839, although it might be ineffectual to
establish paramount title, apart from possession and payment of
taxes for seven successive years.
Holloway v. Clark, 27
Ill. 483, 486;
Dickenson v. Breeden, 30 Ill. 279, 326;
McCagg v. Heacock, 34 Ill. 476, 478;
Stubblefield v.
Borders, 92 Ill. 279, 284;
Brooks v. Bruyn, 35 Ill.
394;
Fagan v. Rosier, 68 Ill. 84, 87;
Hardin v.
Gouverneur, 69 Ill. 140, 143;
Lake Shore &c. Railway
v. Pittsburg, Fort Wayne, &c. Railway, 71 Ill. 38;
Coleman v. Billings, 89 Ill. 183, 190;
Stumpf v.
Osterhage, 111 Ill. 82, 88;
Baldwin v. Ratcliff, 125
Ill. 376, 384.
In cases 1,211, 1,212, 1,213, 1,214, and 1,217, respectively,
the purchaser from Mrs. Lewis went into possession under a bond for
a deed. These bonds did not purport to convey the title, but were
executory agreements entitling the purchaser to a deed. If it be
said that possession under a bond for a deed, or under a contract
for the purchase of land, neither purporting to convey the title,
is not possession "under claim and color of title" within the
meaning of the statute,
Rigor v. Frye, 62 Ill. 507, 509;
Hardin v. Crate, 78 Ill. 533, 536-537;
Robbins v.
Moore, 129 Ill. 30, 46, a sufficient answer is that each bond
was followed by a deed from Mrs. Lewis, purporting to convey the
fee, and that from at least the execution of the latter deed, the
purchaser was in possession under such claim and color of title as
the statute required. And even if we assume that the deed did not
have relation back to the date and recording of the bond, so as to
give the grantee the benefit of his actual possession under the
bond, though the contrary view is asserted on the authority of
Snapp v. Peirce, 24 Ill. 156, 159;
Russell v.
Mandell, 73 Ill. 136, 138;
Schneider v. Botsch, 90
Ill. 577, 580, and that possession under the sheriff's deed by Mrs.
Lewis was not adverse to those, if any, in remainder, and excluding
therefore the entire period during which she held the apparent
legal title which that deed conveyed, there was yet more than
seven
Page 145 U. S. 73
years' actual possession by the defendants, accompanied by the
payment of taxes under subsequent deeds, duly recorded, and
purporting, in each instance, to convey the fee.
It results that these actions are barred by the statute unless
it be held not only that plaintiffs were reversioners, but that
limitation could not run against them during the life of Mrs.
Lewis. The general rule in Illinois, as elsewhere, undoubtedly is
that limitation does not run against a reversioner or remainderman
pending the prior estate because during that time he has no right
of entry. Having no right of entry, he is not deemed guilty of
laches in failing to assert his rights during the existence of the
life estate.
Higgins v. Crosby, 40 Ill. 260, 262;
Dugan v. Follett, 100 Ill. 581, 589;
Orthwein v.
Thomas, 127 Ill. 555, 569;
Mettler v. Miller, 129
Ill. 630, 640;
Rohn v. Harris, 130 Ill. 525, 531.
But the case of
Dugan v. Follett, just cited, shows
that in its application, this general rule is not without
exceptions in Illinois. In that case, it appears that by a decree
rendered in a suit in equity brought in one of the courts of
Illinois, an administrator was directed to invest certain moneys
then in his hands in real estate, no particular lands being
specified, and to convey the same to the plaintiff, Mrs. Jennings,
for her life, with remainder in fee to the named heirs of her late
husband. The investment was made, and a deed of that character was
executed. November 20, 1850, to Mrs. Jennings. That deed was not
put upon record, but the fact of its execution was reported to the
court by the administrator and his report placed among the files of
the suit in which the decree, directing the investment, was made.
Mrs. Jenings did not die until November 18, 1875. During her
lifetime, the lands passed into the possession of others under
warranty deeds, conveying the title in fee. The dispute was between
those parties and the persons in remainder. The evidence showed
that those who held under the warranty deeds, and their immediate
grantors, were in actual possession, adversely to all the world,
without any knowledge that the plaintiffs had any claim, as
remaindermen, to the premises, and paid all taxes assessed on the
lands, "thus," the court said,
"making out a clear case of possession,
Page 145 U. S. 74
payment of taxes under claim and color of title made in good
faith, for more than the statutory period."
The court also said:
"It is clear therefore unless there is something in the facts of
this case which takes it out of the operation of the statute, the
right to maintain the present proceedings is barred by the
limitation act of 1839. It is a fundamental principle in the law of
limitations that the statute never commences running until the
right of entry accrues, and since by the limitations of the deed
from Hugh Rhodes to Mrs. Jennings, under which appellees [the
remaindermen] claim, their right of entry did not accrue until her
death, which occurred less than seven years before the commencement
of the present proceedings, it would seem to follow that this
proceeding is not barred by the limitation act of 1839, and such
undoubtedly would be the case if that deed had been properly
recorded or if appellants and those under whom they claim
had purchased
with notice of appellees' rights. But that
deed was
never recorded, and, as already stated, there is
nothing to show that appellants, or their immediate grantors,
had notice of its existence."
It was contended in that case that the administrator's report,
showing the conveyance of the land to Mrs. Jennings for life, with
remainder to the named children of her deceased husband, was
constructive notice of the rights of those in remainder. To this
the court replied that if the object of the suit had been
"to compel the administrator to convey these particular lands,
then we would have no hesitancy in holding the record of that case
constructive notice of the rights of those claiming under the
decree in it, whether the deed was placed upon record or not. But
such was not the object of that suit. Neither the decree nor the
pleadings in that case contain any description of these lands, or
even make the slightest reference to them."
It was held that purchasers were not bound to look beyond the
judgment or decree, and the legal effect it might have on the title
which was the subject of inquiry, and were not chargeable with
constructive notice of every fact that might appear on the files of
the case in which such decree was rendered. In reply to the
suggestion that the tenant for life, Mrs. Jennings, was bound to
pay all taxes, and as the persons,
Page 145 U. S. 75
holding under the warranty deeds, succeeded to that estate, they
were bound to pay them, and therefore could not avail themselves of
the limitation act of 1839, the court said:
"Conceding such would have been the case
if the Jennings
deed had been put upon record, or if appellants and those under
whom they claim had purchased with notice of that deed, yet
appellants claim, as we have already seen, adversely to appellees
and independently of any rights acquired through the Jennings deed,
and insist that inasmuch as that deed
was not placed upon
record, and they did not otherwise have notice of it, they are not
to be affected by its provisions, and in this we think they are
right. The recording and limitation laws are both a part of
the law of the state, and of equal force and validity, and the
court should so construe and apply them as to effectuate the
objects and purposes of the legislature in adopting them. The 30th
section of chapter 30 of the Revised Statutes, entitled
'Conveyances,' provides that all deeds, mortgages, etc., shall take
effect and be in force from and after the time of filing the same
for record, and not before, as to all creditors and subsequent
purchasers without notice, and all such deeds shall be adjudged
void as to all such subsequent purchasers without notice until
filed for record. To hold that appellants, under the facts in this
case, are to be affected in any manner by the Jennings deed would
be to simply disregard this plain provision of the statute, which
we are not permitted or inclined to do. In construing and giving
effect to the limitation laws, courts must do so in such manner as
to also give effect to this plain provision of the statute making
all deeds void as against subsequent purchasers without notice
until filed for record.
Kennedy v. Northup, 15 Ill. 149;
Holbrook v. Dickenson, 56 Ill. 497."
That the title asserted by the remainder-men in that case was by
deed, and not under a will, does not affect the principle upon
which the decision rested.
So far as we are aware, the rule announced in
Dugan v.
Follett has not been disturbed or modified by any subsequent
case. On the contrary, it was recognized in
Safford v.
Stubbs, 117 Ill. 389, 394. The subsequent cases of
Mettler
v.
Page 145 U. S. 76
Miller, 129 Ill. 630, 642, and
Rohn v. Harris,
130 Ill. 525, upon which the plaintiffs confidently rely, are not
at all in conflict with
Dugan v. Follett. In the first of
those cases,
Mettler v. Miller, the court affirmed the
general rule announced in the previous cases that
"the possession of land by a tenant for life cannot be adverse
to the remainderman or reversioner, and if he conveys to a third
person by words purporting to pass the absolute property, the
possession of the purchaser is not and cannot be, during the
continuance of the life estate, adverse to the remainderman or
reversioner so as to set the statute of limitations running against
such remainderman or reversioner; but after a life estate falls in,
the possession will be adverse as to a remainderman or
reversioner."
But it is evident from the whole opinion that this rule was
applied strictly against the parties who sought to take shelter
under the statute of limitations, because the title
traced to
them and
under which they entered, and
as it
appeared of record, showed that they had notice of the rights
of the remaindermen when they took possession. That the court
regarded the state of the title, as shown by the public records, to
be important in determining whether the rights of the remainderman
could be affected by the actual possession during the life estate
of one claiming under a deed conveying the fee is clear from its
reference to the case of
Safford v. Stubbs. It said:
"Nor can
Safford v. Stubbs et al. avail appellee.
Neither Berkey or Reiner, his immediate grantor, had notice that
the interest of Weiser in the premises was merely that of a life
tenant, and
the records did not show it."
So, in
Rohn v. Harris, above cited, where the parties
held possession under color of title, and paid all taxes for more
than seven years, the defense, based upon the statute of
limitations, was overruled upon the ground, in part, that the
various deeds and wills under which the parties held "were
upon
the record, so that each purchaser had notice of the title under
which he occupied the property."
See also Dean v.
Long, 122 Ill. 447, 460.
At the trial below, the plaintiffs introduced in evidence "a
certified copy of the will of Romeo Lewis from the recorder's
Page 145 U. S. 77
office of Woodford County, Illinois." To the copy of the will so
recorded were appended the affidavits of the subscribing witnesses,
made in the Court of Common Pleas of Butler County, Ohio at its
June term, 1843, proving the execution of the will; a certificate
by the judge and
ex officio clerk of the probate court of
that county, under date of August 2, 1866, to the effect that the
foregoing was
"a true and correct copy of the last will and testament of Romeo
Lewis, late of said county, aforesaid, and of the affidavit of the
subscribing witness thereto, and of the order and proceedings of
said court admitting the same to probate, the said copies of said
will, affidavit, order, and proceedings having been taken from the
originals on file and record in said court."
These copies were on August 15, 1866, filed for record, and
recorded, in one of the deed records in the office of the circuit
court clerk and
ex officio recorder for Woodford County,
Illinois. But the copies, so filed and recorded, did not in fact
include copies of the order and proceedings of the probate court in
Ohio admitting the original will to probate. The defendants
objected to the admission of the above paper as evidence because it
did not show any order of the Ohio court admitting the will to
probate and was not properly certified. The paper was admitted in
evidence subject to objection.
Was the record thus made in Illinois, August 15, 1866, in
respect to the will of Romeo Lewis, notice from that date that Jane
N. Lewis acquired under the will of Romeo Lewis a life estate only
in his lands in that state? By the statutes of Illinois in force
when that will took effect, it was provided that
"every will, testament, or codicil, when thus proven to the
satisfaction of the court of probate, shall be recorded by the
judge thereof in a book to be provided by him for that purpose, and
shall be good and available in law for the granting, conveying, and
assuring the lands, tenements, and hereditaments, annuities, rents,
goods, and chattels therein, and thereby given, granted, and
bequeathed."
The same statute contained this section:
"SEC. 7. All wills, testaments, and codicils, or authenticated
copies thereof, proven according to the laws of any of the United
States, or the territories thereof, or of any
Page 145 U. S. 78
country out of the limits of the United States, and touching or
concerning estates within this state, accompanied with a
certificate of the proper officer or officers that said will,
testament, codicil, or copy thereof was duly executed and proven
agreeably to the laws and usages of that state or country in which
the same was executed shall be recorded as aforesaid, and shall be
good and available in law in like manner as wills made and executed
in this state."
Rev.Stat. Ill. 1833, pp. 612, 614, §§ 2, 7. These
provisions were retained in the Acts of March 3, 1845, and March
20, 1872. Rev.Stat. 1845, c. 109, § 8, p. 538; Rev.Stat. 1874,
c. 148, § 9. By the second section of the Act of February 14,
1857, relating to conveyances, it was provided:
"SEC. 33. All original wills, or copies thereof, duly certified
according to law, or exemplifications from the record in pursuance
of the law of Congress in relation to records in foreign states,
may be recorded in the same office where deeds and other
instruments concerning real estate may be required to be recorded,
and the same shall be notice from the date of filing the same for
record as in other cases."
Laws Ill. 1857, p. 39; Gross' Stat.Ill. 1868, p. 108, § 35.
This section was slightly modified by the conveyance Act of March
29, 1872, but not so as to affect the question before us. Rev.Stat.
1874, p. 279, c. 30, § 33; 1 Starr & Curtis' Ill.Ann.Stat.
597.
It is clear from these statutes that the will of Romeo Lewis, or
an authenticated copy thereof, proven according to the laws of
Ohio, if accompanied with a certificate of the proper officers that
the will was duly executed and proven agreeably to the laws and
usages of that state, could at any time after it took effect, have
been recorded in Ill., and thereby become good and available in
that state in like manner as wills there made and executed, and
that from at least the passage of the act of 1857 it would have
become, after the filing of the same for record, and in respect to
the real estate devised by it, notice as in the cases of deeds
conveying real estate. But it is equally clear that the copy of the
testator's will filed and recorded in 1866 in the office of the
recorder of Woodford County was not authenticated or certified so
as to entitle it to
Page 145 U. S. 79
record under the above statutes in Illinois. It was not
certified to have been executed and proven according to the laws
and usages of the State of Ohio, where it was made. Besides, while
the certificate of the judge and clerk of the probate court in Ohio
refers to the order and proceedings of that court admitting the
will to probate, no copies of such order and proceedings were in
fact attached to the certified copy of the will filed for record.
If the certified copy of the will, filed for record, had been
accompanied by a duly certified copy of the proceedings in the Ohio
probate court, relating to the probate of the will, and if that
would have been a compliance with the statute, entitling the copy
of the will to be recorded in Illinois, it is certain that without
certified copies of such proceedings, or without a certificate by
the proper officer showing that the will had been executed and
proven agreeably to the laws of Ohio, the copy of the will filed
with the recorder of Woodford County could not be recorded in
Illinois, so as to make that record notice as in cases of deeds or
other written instruments concerning real estate.
Baldwin v.
Ratcliff, 125 Ill. 376, 384. It results that the recording in
Illinois in 1866 of what purported to be the will of Romeo Lewis
was without legal effect, and was not in law notice that the lands
in dispute were part of those referred to in that will.
The contention of the plaintiffs is that even if the will was
not properly recorded in Illinois, it was nevertheless evidence as
to the title to the lands.
Shephard v. Carriel, 19 Ill.
313;
Newman v. Willetts, 52 Ill. 99;
Safford v.
Stubbs, 117 Ill. 389. But this view does not meet the question
before us as to whether the record of the will in Woodford County,
from and after it was made, was itself notice to those who
purchased from Mrs. Lewis. A duly certified copy of the will may be
competent evidence upon the issue as to paramount title, but it
could not operate as constructive notice of its contents from the
date of the insufficient record of it made in 1866 in Woodford
County.
It is said that the book of land entries kept in the office of
the county clerk of Woodford County, and furnished by the auditor
to that officer for the purposes of taxation, furnished
Page 145 U. S. 80
evidence of the fact that Romeo Lewis was seised of these lands
by patent from the United States, and that they were thus put upon
inquiry as to the nature of the estate which Mrs. Lewis took. But
this fact would only have proved the ownership of the lands at one
time by Romeo Lewis, not that he had made a will which was recorded
in Ohio and which gave his wife only a life estate in his Illinois
lands. Besides, in
Betser v. Rankin, 77 Ill. 289, it was
held that knowledge of the facts appearing in the book of land
entries must be brought home to purchasers. "They are facts," the
court said,
"which, in order to affect a purchaser, he must have actual
notice of; there is no constructive notice of such facts. At that
time, reports of the entries of public lands were certified by the
auditor to the several county clerks in the state, and the list of
entries so furnished by the auditor was copied by the clerk into
his book of land entries, but all this was for the purposes of
taxation, not of notice of the entries. No such effect of notice
has been given by law to such report or book of land entries. Such
entries, books, and papers in the office of the county clerk are
not constructive notice of their subject matter to subsequent
purchasers."
See also Bourland v. County of Peoria, 16 Ill. 538;
Anthony v. Wheeler, 130 Ill. 128, 136.
Some reliance is placed upon the fact that the recitals in a
deed for certain lands, made by Mrs. Lewis to one Mohr in 1853,
indicated that they were devised to her by the will of her husband.
It is scarcely necessary to say that those recitals were not notice
to those who purchased other lands from Mrs. Lewis of the existence
of such a will, or of its provisions, there being no valid record
of it in Illinois.
It is proper, also, to say that no claim is made that this case
is affected, in any wise, by the proviso in the statute of
limitations saving the rights of persons laboring under certain
named disabilities at the time the cause of action accrued. "The
tax sale," the Supreme Court of Illinois has said,
"although it may have been defective, and the title acquired
under it, when relied upon alone as a title, might not have been
regarded as valid, yet the deed which the defendant
Page 145 U. S. 81
obtained, which, upon its face, purported to convey the land,
was color of title. A title of this character, obtained in good
faith, followed with the payment of all taxes legally assessed for
seven successive years, while the land is vacant, and possession
then taken, has been uniformly held by this Court to be a valid
title as against all persons, except such as may be under the
disability named in the statute."
Whitney v. Stevens, 77 Ill. 585, 587. And in
McDuffee v. Sinnott, 119 Ill. 449, 452, it was held that
when the bar of the statute becomes absolute,
"the occupant thereby acquires such a title as he may
successfully assert against all the world, including the paramount
owner himself, except such as are laboring under disabilities."
So clearly is this the case, the learned counsel for the
plaintiffs in error frankly concedes, as he must have done, that
these actions are barred by the statute, if limitation ran against
them during the life of Mrs. Lewis, before or after she
conveyed.
We are of opinion that, by the law of Illinois, the actual
possession of the several defendants, for more than seven
successive years prior to the commencement of these actions, of the
lands in controversy under claim and color of title made in good
faith -- that is, under deeds purporting to convey the title to
them in fee, and the payment of all taxes legally assessed on them,
without notice, actual or constructive, during that period, of any
title to or interest in the lands upon the part of others that was
inconsistent with an absolute fee in their immediate grantors, and
in those under whom such grantors claimed -- entitled them to be
adjudged the legal owners of such lands according to their
respective paper titles, even as against those, if any, who may
have been entitled by the will of Romeo Lewis to take the fee after
the death of Mrs. Lewis without heirs of her body. If that will
only gave a life estate to Mrs. Lewis, and the plaintiffs, as
reversioners or possible reversioners, had no right of entry
pending the life estate, and therefore were not chargeable with
laches, and if, as is contended, Mrs. Lewis, as life tenant, was
under a legal obligation to pay the taxes for which the land was
sold, and could not, by permitting them to be sold for taxes
and
Page 145 U. S. 82
becoming the purchaser, acquire the fee and thereby despoil
those in remainder, it was nevertheless in the power of the
plaintiffs, and those under whom they claim, long before the
defendants became the owners of the lands by possession and payment
of taxes, under claim and color of title made in good faith, to
have placed the will of Romeo Lewis, duly proved, upon record in
Illinois, and in that mode to have given notice of their interest
in the lands.
The judgment in each of the above cases is
Affirmed.
