Jayne v. Gregg

42 Ill. 413

• Court: Illinois Supreme Court
• Decided: November 15, 1866
• Status: Published

Opinion

Mr. Justice Lawrence

delivered the opinion of the Court:

This was an action of ejectment, in which the plaintiff proved a title derived from the patentee, and the defendant showed color ot title by a deed to one Jones, and a deed from Jones to himself. He also proved that Jones paid the taxes for the years 1853 to 1858, inclusive, and that he himself paid the taxes from 1859 to 1863, both inclusive. But the weakness of this defense lies in the fact that the deed from Jopes to the defendant bears date March 1, 1858, and it was acknowledged on the 27th of March, 1858. In the absence of all proof, the presumption is that it was delivered on the day of its date. At the time, then, that the defendant acquired his color of title, to wit, March, 1858, the taxes for that year had not become a lien on the land, and did not become so until the 1st of May, 1858, and, although the day of their payment does not appear by the record, they could not have been in fact paid until long after that date. When Jones paid them he had parted with his title, and, as they were not a lien at the time of his conveyance, he was under no obligation to pay them. Payment by him was merely payment by a stranger, and the defendant, who had the color-able title, and should have paid the taxes, can derive no aid from the payment by Jones. This principle has been repeatedly settled by this court. Fell v. Cessford, 26 Ill. 525, and cases there cited. If Jones had held a lien on the land, a different question would have been presented, but, so far as the record discloses, he had no interest in it.

Counsel in their brief appeal to the limitation law of 1835. But that law requires residence, and there is no evidence in this record showing what the character of the possession was.

We cannot presume it was by actual residence as required by that act. The judgment must be reversed, and the cause remanded.

Judgment reversed.