Lacey, P. J.
The first important inquiry is, had the defendant in error such a title as he agreed to convey — that is, a warrantable title, free and clear of all liens and incumbrances. It is not claimed by defendant in error that he can show a title deducible from the United States, the source of all' land titles, or one that is deducible of record except, perhaps, as to lot 2 in B. 107, mentioned in the contract. His claim is that he has a title by limitation based on such firm foundation that there can exist no reasonable doubt of its validity and superiority to all titles that come against it. Such a title he is compelled under the law to make out as to each of the seven lots named in his contract, because the contract is a unit. To an examination of the question as to the validity of his title we will address ourselves. We will first examine the question of possession, leaving the other questions involved to be considered afterward.
As the question of limitations to an important extent arises under sections 8 and 9 of the limitation law of 1839, the inquiry becomes important as to whether the lots were vacant and unoccupied or in actual possession of the party claiming the color of title at the time of the payment of the taxes by the holder of such color as well as the particular period at which actual possession was taken of the several lots.
The first inquiry will be as to those conditions. There is some dispute between counsel for the respective sides over these points. There are seven lots in question and actual possession was taken of those lots at different periods. But first it is agreed until 1855 all the lots were vacant and unoccupied, and that no one had ever been in actual possession up to that time, of either of the lots. The main point of dispute as to taking and continuing possession is as to what was the condition subsequent to that time.
Lots No. 2 and 3 in B. 107 were taken possession of at a different period than that of the occupancy of the other lots, 7 and 8 inB. 98 and 4, 5 and 8 in B. 99. First woVill inquire as to the possession of the first named lots. These two lots were conveyed by Rodney House to Carpenter & Marsh on the 1st day of June, A. D. 1874. Prior to that time the lots were vacant and unoc/upied and ever had been. Frank E. Marsh testifies that he was a member of the firm of Carpenter & Marsh and was acquainted with the lots. “We bought the whole block of Rodney House, I think, in 1874. We went into possession at the time of the purchase, I think in the spring of 1874; continued in possession until 1878, then sold to the firm of Ford & Slater. They began at once erecting the oat meal mill, the one on it now. Prior to the purchase it (the block) was vacant and unoccupied.” “While we held it, our possession was not questioned, or our title objected to.” This was substantially all the evidence on the disputed point of possession from 1874 to 1878 of these lots. It is insisted by counsel for plaintiff in error that this is not sufficient proof of “ actual possession.” There should have been labor or expenditure of some sort shown. The word possession implied actual possession. It is a legal term known to the law and implies certain acts, as is claimed, and “ those acts should he proven.” This witness was allowed to testify that they went into actual possession, and so remained without, any question or objection. He swore to a fact, the fact of possession, without being cross-examined, in order to bring out the particular facts. The court could but take his testimony as he gave it — and rve must be satisfied with it. Ho evidence was given to contradict it. We then hold that there was aetu d possession of these lots by Carpenter & Marsh from the 1st of June, 1874, till 1878, when they were sold to Ford & Slater, and that such possessiqn has continued ever since.
As to the other five lots mentioned it is claimed that August Grassman was in actual possession from and after 1857 or 1858, and we find on the evidence of Werner, that to be a fact. The only evidence we find is the testimony of Charles Werner, who testifies: “ During all the time from 1864 to 1871 Grassman occupied those five lots and quarried stone on them ; I think they (Grassmans) built a house there in 1857 or 1858. They lived there all the time till he sold, in 1878 or 1879.” * * * “ The quarry was on all five of the lots, and they built a house in 1857 "or 1858, three fourths in the street and one fourth on the lot — not quite three fourths, about one third on lot 8, block 98, and two thirds in the street. I never knew of Grassman’s rights and interests being questioned or attacked.”
It is claimed under this testimony by plaintiff in error that Grassman abandoned the actual possession of the lots in 1871, because he had worked out the stone quarry, but we fail to see any evidence of this fact, nor can we see that this is a legitimate deduction from the evidence. Besides this, Grass-man held his house on one of the lots, which was possession of itself of at least that lot, and as the house had been used for the benefit of the quarry, without further evidence the house and improvements would hold possession of all. Therefore we must hold that actual possession continued on these five lots from 1857 or 1858, till the decree was rendered herein.
The next question then is, had the defendant in error color of title and payment of taxes for the requisite number of years, or had he twenty years actual and uninterrupted possession. As to lots 7 and 8 in block 99, we find that Martin H. Demmond, under whose title defendant in error c'aims, had a tax deed from the auditor of state of Illinois, dated Jan. 13, 1816. The defendant in error became connected with this title, by regular conveyances through different intermediate holders, and so held the title at the time his deed was tendered to plaintiff in error, and th e time of the final decree. The proof shows also that Demmond paid all the taxes assessed on these lots from the year 1816 to the year 1855, both inclusive, a period of ten years. This was while these lots were vacant and unoccupied, thus creating a complete bar under the 8th section of the statute of 1839, and it had been complete some thirty-nine years prior to the time the decree was rendered herein. Besides this, the actual possession of these lots was taken by Grassman, he building a house on one of them, lot 7, in 1857 or 1858, and that the lots have been in possession ever since. This would also create a complete bar under the statute of twenty years prior to the decree.
Stevens and Beed, the respective patentees of the lots in 1836, died in this State, and neither of them was under any of the disabilities named in the act. We think that the time that the limitations had run in regard to this lot, and the long and uninterrupted possession of these lots, would render the title morally certain and secure. Bor can we see any objection that can arise to the introduction of the will of Martin H. Demmond. The will, the affidavits attached, and the order of the county court admitting it to record, were shown, and this is all that is required. The sale in 1873, of the lots, for city taxes, could avail nothing, as it has never ripened into a deed. The objection that the deed from Catharine Castle-berry, nee Murray, to Sophia Demmond, did not properly locate the lots, is not well taken.
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Lacey, P. J.
The first important inquiry is, had the defendant in error such a title as he agreed to convey — that is, a warrantable title, free and clear of all liens and incumbrances. It is not claimed by defendant in error that he can show a title deducible from the United States, the source of all' land titles, or one that is deducible of record except, perhaps, as to lot 2 in B. 107, mentioned in the contract. His claim is that he has a title by limitation based on such firm foundation that there can exist no reasonable doubt of its validity and superiority to all titles that come against it. Such a title he is compelled under the law to make out as to each of the seven lots named in his contract, because the contract is a unit. To an examination of the question as to the validity of his title we will address ourselves. We will first examine the question of possession, leaving the other questions involved to be considered afterward.
As the question of limitations to an important extent arises under sections 8 and 9 of the limitation law of 1839, the inquiry becomes important as to whether the lots were vacant and unoccupied or in actual possession of the party claiming the color of title at the time of the payment of the taxes by the holder of such color as well as the particular period at which actual possession was taken of the several lots.
The first inquiry will be as to those conditions. There is some dispute between counsel for the respective sides over these points. There are seven lots in question and actual possession was taken of those lots at different periods. But first it is agreed until 1855 all the lots were vacant and unoccupied, and that no one had ever been in actual possession up to that time, of either of the lots. The main point of dispute as to taking and continuing possession is as to what was the condition subsequent to that time.
Lots No. 2 and 3 in B. 107 were taken possession of at a different period than that of the occupancy of the other lots, 7 and 8 inB. 98 and 4, 5 and 8 in B. 99. First woVill inquire as to the possession of the first named lots. These two lots were conveyed by Rodney House to Carpenter & Marsh on the 1st day of June, A. D. 1874. Prior to that time the lots were vacant and unoc/upied and ever had been. Frank E. Marsh testifies that he was a member of the firm of Carpenter & Marsh and was acquainted with the lots. “We bought the whole block of Rodney House, I think, in 1874. We went into possession at the time of the purchase, I think in the spring of 1874; continued in possession until 1878, then sold to the firm of Ford & Slater. They began at once erecting the oat meal mill, the one on it now. Prior to the purchase it (the block) was vacant and unoccupied.” “While we held it, our possession was not questioned, or our title objected to.” This was substantially all the evidence on the disputed point of possession from 1874 to 1878 of these lots. It is insisted by counsel for plaintiff in error that this is not sufficient proof of “ actual possession.” There should have been labor or expenditure of some sort shown. The word possession implied actual possession. It is a legal term known to the law and implies certain acts, as is claimed, and “ those acts should he proven.” This witness was allowed to testify that they went into actual possession, and so remained without, any question or objection. He swore to a fact, the fact of possession, without being cross-examined, in order to bring out the particular facts. The court could but take his testimony as he gave it — and rve must be satisfied with it. Ho evidence was given to contradict it. We then hold that there was aetu d possession of these lots by Carpenter & Marsh from the 1st of June, 1874, till 1878, when they were sold to Ford & Slater, and that such possessiqn has continued ever since.
As to the other five lots mentioned it is claimed that August Grassman was in actual possession from and after 1857 or 1858, and we find on the evidence of Werner, that to be a fact. The only evidence we find is the testimony of Charles Werner, who testifies: “ During all the time from 1864 to 1871 Grassman occupied those five lots and quarried stone on them ; I think they (Grassmans) built a house there in 1857 or 1858. They lived there all the time till he sold, in 1878 or 1879.” * * * “ The quarry was on all five of the lots, and they built a house in 1857 "or 1858, three fourths in the street and one fourth on the lot — not quite three fourths, about one third on lot 8, block 98, and two thirds in the street. I never knew of Grassman’s rights and interests being questioned or attacked.”
It is claimed under this testimony by plaintiff in error that Grassman abandoned the actual possession of the lots in 1871, because he had worked out the stone quarry, but we fail to see any evidence of this fact, nor can we see that this is a legitimate deduction from the evidence. Besides this, Grass-man held his house on one of the lots, which was possession of itself of at least that lot, and as the house had been used for the benefit of the quarry, without further evidence the house and improvements would hold possession of all. Therefore we must hold that actual possession continued on these five lots from 1857 or 1858, till the decree was rendered herein.
The next question then is, had the defendant in error color of title and payment of taxes for the requisite number of years, or had he twenty years actual and uninterrupted possession. As to lots 7 and 8 in block 99, we find that Martin H. Demmond, under whose title defendant in error c'aims, had a tax deed from the auditor of state of Illinois, dated Jan. 13, 1816. The defendant in error became connected with this title, by regular conveyances through different intermediate holders, and so held the title at the time his deed was tendered to plaintiff in error, and th e time of the final decree. The proof shows also that Demmond paid all the taxes assessed on these lots from the year 1816 to the year 1855, both inclusive, a period of ten years. This was while these lots were vacant and unoccupied, thus creating a complete bar under the 8th section of the statute of 1839, and it had been complete some thirty-nine years prior to the time the decree was rendered herein. Besides this, the actual possession of these lots was taken by Grassman, he building a house on one of them, lot 7, in 1857 or 1858, and that the lots have been in possession ever since. This would also create a complete bar under the statute of twenty years prior to the decree.
Stevens and Beed, the respective patentees of the lots in 1836, died in this State, and neither of them was under any of the disabilities named in the act. We think that the time that the limitations had run in regard to this lot, and the long and uninterrupted possession of these lots, would render the title morally certain and secure. Bor can we see any objection that can arise to the introduction of the will of Martin H. Demmond. The will, the affidavits attached, and the order of the county court admitting it to record, were shown, and this is all that is required. The sale in 1873, of the lots, for city taxes, could avail nothing, as it has never ripened into a deed. The objection that the deed from Catharine Castle-berry, nee Murray, to Sophia Demmond, did not properly locate the lots, is not well taken. However much objection there could be to the description, the deed has been corrected by subsequent conveyance to defendant in error by Catharine Castleberry, and as to the acknowledgment, we see no fault with it. We think the deed conveying the tax title of the city of Joliet, by the mayor and clerk of the city, and being subsequently ratified, would be sufficient to convey any title the city had ; besides, this deed seems to have been void for want of a valid judgment or precept.
As to the title of lot three in block one hundred and seven, color of title is to be found in Rodney House, by tax deed from the sheriff of Will county, dated April 24,1856. Rodney held this title till June 1, 1874, when he sold it to Carpenter & Harsh, who took immediate and actual possession of it, but up to that time it remained vacant and unoccupied.
It appears from the evidence that House paid all the taxes on said lot for each consecutive year from 1860 to 1872. It is claimed by plaintiff in error that Harvey Law paid the taxes for 1865, but we find no evidence of that fact, even if the record showed, which we think can not be claimed, that the lot was assessed in Law’s name ; yet George S. House testified that he paid the State and county tax on it for Rodney House for 1865. The objection that he lost the color of title by virtue of another tax deed from the sheriff to another party, is not well taken. Color is not lost by the occurrence of such fact. Carpenter & Marsh, and those claiming under them, paid the taxes each year, from 1874 to 1882, when the lot was sold for taxes. This makes over seven consecutive years payment of taxes on this lot while it was in actual possession. This creates a bar both under the 8th and 9th sections of the act of 1839. But we think that the claim set up by defendant in error, that the twenty years limitations had run, can not be sustained for the reason that the lot was not in actual possession, which the law requires to make out a bar under that law, until 1874, and since that twenty years time has not elapsed. Charles Reed, the patentee of this lot in 1836, died in this State in 1863, and never was under any of the disabilities named in the act, and he had never conveyed the lot. The statute had begun to run one year before his death, and having commenced to run. would continue against any of his heirs, notwithstanding they might be minors.
We will next consider lots 4, 5, and 8 in block 99. The color of title to these lots is claimed as follows: First, to lot Ho 5, which is shown to be worth only about $50, we find a deed from S. O. Simmms and wife to August Grassman, dated September 17, 1857. This was tax title. Then as to the remaining two lots, the tax title of John Frederick and wife through mesne conveyances of Myron K. Branson to August Grassman, dated July 5, 1856. The objections to this color of title from Myron K. Branson to Micajah L. Adams and from said Adams to .John Frederick on account of defect in description of lots and for other reasons, are not well taken, for the reasons that it is not necessary, in order to vest good color of title to the lots in Grassman by virtue of his deed from Frederick, that the title should be connected Avith any source of title Avhatever, so that it is not necessary to consider such objec ion. The objection to the certificate of acknoAvledgment to the deed to Grassman above named, from Frederick, is not pointed out specifically or the certifi.cato abstracted, and for this reason Ave mast regard it as not Avell taken. The objections to the deed from Simmons to Grassman above mentioned, of the same nature, viz., that. Simmons never had a tax deed, and the lot had gone to sa’e after his tax purchase and was sold afterward, are not good as above decided. Then the color of title to lot 5 Avas in Grassman, September 17, 1877, and as to the other lots July 5, 1856. As has been shown said Grassman took actual possession of these lots in connection with lots 7 and 8, in block 98, in 1857 or 1858, and built a house on lot 7, and has had actual possession till he sold to Carpenter & Marsh, and the lots have so remained ever since, in actual possession in the various grantees of Grassman.
Taxes were paid on these lots by Grassman, and those claiming under him from 1871, which makes payment of taxes for more than seven years while Grassman and his grantees were in actual possession under color of title. Besides the Statute of Limitation of twenty years had run from 1857 or 1858 Avhile the parties were in actual possession. ' Mark Beaubien entered lots 4 and 8 in said block, in 1836, never conveyed, and lived in the State until 1869, when he died. Martin H. Demmond entered lot 5 in 1835. He resided in the State till 1854, when he died, devising the lot to Sophia Demmond and Catharine M. Murray. Neither Beaubien, Demmond or his devisees were under any disabilities mentioned in the act of 1839, and the said devisees are still alive and under no disabilities nor were they at the time the title came to them. It seems as though the title to these lots was good without any reasonable doubt. The fact that the lots Or some of them were sold for city taxes in 1873, could not defeat either of the above named bars.
As to lot No. 2 in block No. 107, the defendant in error claims that he has shown a clear title derived from the State of Illinois, this having been scln ol land belonging to the State ceded from the government of the United States.
It is claimed by the plaintiff in error, the record of the deed from the patentee to Scainmon, one of the links in the chain of title, should not have been admitted in evidence, claiming that the certificate of the acknowledgment of the deed does not show the official seal of the clerk of the Cambria County, Pennsylvania, Court, before whom the acknowledgment was taken. We find this claim to be an entire error in statement, as by reference to the record the seal appears. This alleged error having no foundation in fact, the court below committed no error in admitting it in evidence. The objec. tion to the other deeds completing the chain of title to this lot are without foundation or merit, as well as to objections on account of taxes and deeds. Therefore, the title to this lot is good in defendant in error. This then completes the title to all the lots in question, and we think it good beyond any reasonable question or doubt, and so far as the complaint to the title is concerned it is not substantial. The title to the undivided half of the Johnson heirs in the lots was, as far as we can discover, procured in the manner contemplated by the agreement, and there appears to be no substantial defect in the proceedings. It is complained that the deed to the lot in question was not tendered in time by defendant in error, or the title to all the lots perfect in time, January 10, 1884. This objection is sufficiently answered by the 'fact that the time in which the deed was to be made was not of the essence of the contract; the time, however, in which the payments were to be made, was. The contract was unilateral in this respect. If the defendant in error had a good title at the time the decree was rendered it would be sufficient. The title to the feed mill on the property was not to be warranted, and only a quit claim deed was to be given by defendant in error to that portion of Shelby street in Joliet lying between Pleasant street and the Des Plaines river; and that part of Pleasant street, in said city, from the center of Jasper street to the west bank of the Des Plaines river was in the same condition. And the same was true as to lease on the extension of the railroad track when it was awarded, and no fraud appears in procuring the extension of the contract, or misrepresentation of defendant in error such as to forfeit the contract. The plaintiff in error knew well what he was buying, or could have known so by reasonable care.
In regard to the water power diverted from Des Plaines river to the oatmeal mill property,we find the facts to be that before this contract had been entered into, the lease from the Illinois and Michigan canal to Druley, defendant in, error, had been declared void by the courts (see Druley v. Adam, 102 Ill. 177), all of which plaintiff in error knew,, and steam was put into the mill, he not relying on the waterpower. The taking of the new lease by defendant in error of the water power could work no injury to plaintiff in error, and he need not accept it unless he chooses, if he did not agree to the lease. But we think the evidence and circumstances pretty clearly show that he consented to the new lease, of which he now complains.
We see no objection that appears to us tenable urged by plaintiff in error against his carrying out the agreement on his part. We therefore think that the decree in this (case should be affirmed.
Decree affirmed.