Court, N. D.
S. D. October Ill, 1890.)
1; WILLfl-DBVISB.......EsTATE TAIL. Under Rev. St. Ill. c. 80, § 6, which .provides that the grantee of an estate tail
shall take an estate for life, and that "the remainder shall pass in fee-simple to the person to whom the estate tail WOuld, on the death of the first 'grantee in tail, first .pass, according to the course of the comlDon law," land devised to the testator's wife and the heirs of her body will, on .her death without issue, pass to the heirs of the testator.
II.:. RECORDS-CONSTRUCTIVB 'NOTIOB· .A.book in the county clerk'a office, showing the names of purchasers of government land in the coUnty, being kept only for purposes of taxation, is not constructive notice to subsequent purchasers. Following Betser v. Rankin, 77 Ill. 2ls9. & VBNDOl;\ AND VENDEB-BoNA FIDE PURORASBR-NoTICE. After a purchaser of land hBS taken possession under his contract and made valuable improvements, the recording of a copy of a will affecting his vendor's title is npt. OQnstructive notice to him, though D,lade. before t.he delivery of his deed, since his title relates back to the execution of his contract.
'- ADVERSE POSSESSION-TAX-TITLE.
...Under Rev. St. Ill. o. 88, § 6, which makes seven years' possession and payment of taxes under oolor of title constitute good title, one who purchases in good faith from. the bolder of a tax-title, withOut. notice that his vendor owned an estate for lite iIi .the land at the time of the tax-sale, can, by seven years' possession, and paymeptqf taxes even durIng t.he life of Ju. vendor, obtain good title as against the reversioner. . ,. '. a tax-deed is relied upon onlyu color of title in support. of the statute of limitations, evidence thai the deed was notfounde.d upon a proper judgment is immatei'iaL' , " '
by Romeo Lewis and. others, heirs of Romeo Lewis, deceased, against Abraham Barnhardt and Josephus Gish. Rev. St. Ill. c. 30, §6" provides that, Hin cases where by the common law any person or persons might hereaftel'Lbecome seised in fee-tail·of any lands, * * * such person or persons * * * shall 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 tlJefirst grantee, devisee, or donee in tail, first . PIlSS, Mcording to the course of the common law." Thomas Millikin, Pal'flW W. Smith, and Puterbaugh Puterbaugh, for . plaintiffs. Williams k Capen, W.,f. Gibson, and W. G. Randall, for defendants. BLODGETT, J. This is an action of ejectment for the recovery of a tract of abQut 820 acres ofland in Woodford county, in this state. The facts ,material to the questions involved in the case are all admit- . te4 bya written stipulation on file, and are briefly.these: "That in 188.8, Romeo Lewis, then of Oxford, Butler county, Ohio, entered at tbe'United States Janq.offlce in Springfield, in this statt>, the lands in question, together Wltll. other lands, makingaltogt'ther abouj;: sixteE'l?- hundred acres.. ' That Baid Romeo Lewis died testate. at his residence.in Oxford. Ohio, orl 'the' 24th. dayaf June, '1843. left no issue surViving him, but left a widow/,Uilnt,;N::I..ewiB. That on the '8th day of January; 1842, said Romeo Lewis executedlliis.last will and testament; which was duly probated in the proper COU1·t in Butler county, Ohio, on the 13th day. of· July,. 1843, and un· .
LEWIS II. BARNHARDl'.·
'derwhich his widow, JaneN. Lewis; Was duly a.ppoint&! e$e(lutrlx,andisbe ·qualilied. and entered upon berdutiesas .such executrix, and finally settled after,making said estate in April, 1871. That by bis said will Romeo certain specific bequests t.o relll,tjves, and making provision for the of ,his tl;1en made hiswUe his residuary)egatee, ,the paragraph be: tng in the following words:' I fur,ther give and devisE\ to D)Y dearly beloved of her budy,tny 1)ouses and lands in wife, JaneN. Lewis, and t.o the town of Oxford, Butler 'eoulltY.Ohio, and all the residue of my lands in the states of indiana and Illinois, and all the rest, residue, and 'remain:dM of my personal estate, goods, and chattels, of any kind rand description whatsoever, to be·equaUy divided between them, share and share alike.' Jt is further admitted that on the 2d day of September, 184B, Lewis, in the where said will w,as probated,eleeted to take, under, tqe, will, which electio": was dilly entl'ted of record. , '1'hat she had no living children at the date Of ·the will, but that one was born to her after the date of the 'Will, and thatsucfi child died before the death of her husband. That no child Was ever after born to her, and that she died at the age of eighty years; without issue, in July.1888. at Oxford, which ball. been ber home from the death of her busband. It is further admitted that :tbe plaintiffs in this case are heil's at law of said Romeo Le.wis, being direct ·descendants of his brothers and sisters. It is further admitted, that, lands, 'i'nguestion were assessed for taxes in 1l;j45 in the name of Romeo J.. and sold for non-payment of such taxes Iri Octo'ber, 1846, That 'the certilieates of'purchase at !laid sale "'I'ro assign!edto .M1'lI.: Lewis, on the 16th day oLMay, 1l:l49, the sheriff of Woodford for pursul'oceQf countyexe,cuted and dt'liveted to her a "aJdtax-slI,le, which deed was,dulyreeorped in said Woodford CQuntyon the Aajotits date., Jt is further admitted that the said Jane on tbe 7,th dayar May, 1856, gave to one Harry Lewis a letw of attorney; authorliiltghim to sell, altd· contract to sell. the lands i1i'queation;'and ,that on the 21st of 'June, 1l:l56; be made acont'ractin writinlfwith 'orie Absalom Deharity, by: w kiehc' he agreed to make. 'or cause to' bamade·.agoodandi sufficient warranty deed tp said j)ahority;of1the lands involved in suit,J)D: M-Ylllent $5,600, according tothe terms of certain promissory,notl'sof sai,l Dehority, of even date with said contrllet.That Dehorityatonce entered upOn the of said lands; dailIiIng tl1esame unders'aid contract, and' be'gilD iniprdv ing the same! and within the nexttwd yea'rs had feneed all of said land, )milt two houses thereon, and had a large part of it under cUltivation; and continued' to so reside upon' it until his death in 1876.. That 00 the 31st day of August, 1l:l66, said Jane If. Lewis made to said Dehoritya warrauty 'deed of said lands, in order to carry out the contract of sale made by said Harry LewIs. and that the defendant Jospphus Gish now holds said lands by ·meane cqnveyancl's, making acoJPplete ,of title, duly recordI'd. ,from'the · defendant Barnhardt being tenant of said Gish, and the defendant Josephus Hish, and those under Whom he claims by mesne conveyances from said Jane N.Lewis, have been in fUll and uninterrupted .possession of said lands from the time said Dehority took possession of the saine; in 1l:l56, and have paid all taiceS levied and assE'ssed thereon since that ,time; . It is furthl'r admitted that neither the defendants, nor any of the per. ,spnsfrom whom they claimtltle,.except said JalleN. Lewis, had any;knowledge whatever of the existence of said will. or of tlle probate thereof, at the timeof.the for the purchase of saill lands; it is alsO admitted 'tbatwhat purports to be a copy of said will was recorded in the recorder's office of Woodford 'county on the 15th of August, 1866." .
: Upon tbese: admitted f&cts, can be nO,doubt that Mrs. J-lI-nc;l N. ,Lewis. underhel' hUsbanQ'swill, wOl,lld,ha.ve Jm1r "W hic.ll ,tq .·.n; e$t!J.t.e j ,is:
in its descent to the posterity of some individual, so as to cease upon failureofsuchposterity." , Burt. Real Prop. p. 4. So the same author sa'ys,atpage210: ' "Upon a devise to l\ person andbi, issue or children, the construction varies according to circumstances.. If tbeparty have issue or children at the time when the deVise is made, they will take estates, it seems, for their lives. jointly with their parenti but if he had no issue at that time, he takes an estate tail." But by the operation of the sixth section of chapter 30 of the Revised Statutes of Illinois, tit. "Conveyances," which was in force at the time the will in question was made and took effect, Mrs. Lewis took only an of estate for her natural life; ,and at the death of Mrs. Lewis, in heirs of her body, the heirs at law of the testator, Romeo Lewis, took the estate in fee. The question then arises, do the admitted facts in the case furnish adafense to the claim now asserted by the heirs of Romeo Lewis, the plaintiffs? It'being conceded that Mrs. Jane N.Lewis obtained a tax-deed from the sheriff of Woodford county on the 16th day of May, 1849, which was duly recorded in, Woodford county on that day; that Dehor.ity, under whom defendants claim, entered in into the actual possession of the lands under a contract of purchase from Harry Lewis, agent and attorney of Jane N. Lewis, for a valuable consideration; and that said purchaser received, on the 31st day of August, 1866, a warranty N. Lewis, in order to carry out the contract of sale so deed made by I Harry Lewis; and that from the, time .he took possession under said contract, in 1856, the said purchaser, and those claiming under him by warranty deeds in fee-simple, duly recorded, have continued in actual possession of said premises up to the commencement of this suit, and have paid all taxes assessed against the same. The statute of c. 83, Rev. CSt,) provides thatIllinois "Every person In the actualpossession of lands or tenements under claim and color of title made in good faith, and who shall for seven successi ve years contiuua.. in such possession, and shall also during that time pay all taxes legally asstlssed on such lands or tenements, shall be held and adjudged ,to be the legal owner of said lands or tenElments to the eJl:tent, and according to the purport, of bisor her paper title.... It is contended on behalf of the plaintiffs that Mrs. Lewis, as tenant for life, was bound to pay the taxes, and could not defeat the title of the entail tenants or reversioners by allowing a tax-title to accrue wlrich should in any way change her title or her relation to the rights of those who were to take the estate after her; and that, as the heirs at law oUhe testator had no right of entry untii the death of Jane N. Lewis in 1888, they are' not affected by this tax-title, which she allowed to accrue in' fraud of theirrights, nor by her deed in fee to Dehority. While iUs contended on behalf of the defendants that, as Mrs. Lewis had a color of title of record at the time the persons under whom they claim purchased the lands for a valuable consideration from Mrs. Lewis, and that, such purchaser having taken actual and visible possession in pursuance of such purchase, which possession has been continued, with pa-ynientoftaxes, under deeds purporting to convey the fee-simple title
LEWIS tI. BARNHARDT.
to successive grantees down to the defendant Gish, he has acqtlired a title in fee under the laws of this state, which cannot now be disturbed by the plaintiffs. . It is urged in behalf of plaintiffs that a certain book. which it is admitted was kept in the office of the county clerk of Woodford county, showing the names of the purchasers from the United States of all lands so purchased in the county, was notice to those who dealt with Mrs. Lewis, or her agent, that Romeo Lewis was the purchaser of the lands in question, and thus put them on inquiry as to the nature of Mrs. Lewis' title; but the supreme court of this state has held that this book is not notice to any person. Betser v. Rankin, 77 Ill. 289; Bourland v. County of Peoria, 16 Ill. 538; Anthony v. Wheeler, 130 Ill. 128,22 N. Eo Rep. 494. It is also urged that. as a copy of the will was recorded in the office of the recorder of Woodford county on the 15th of August, 1866, which was prior to the execution and delivery of the deed from Mrs. Lewis to Dehority, this was a notice of the character and extent of her title to all who dealt with her. But I think the fact that Dehority had entered under a contract from Mrs. Lewis' agent in 1856, and taken actual and visible possession, and made valuable improvements. long prior to the recording of this copy of the will in Woodford county, and that the deed to him on the 31st of August, 1866, was given "to carry out the contract" of 1856, gives him a title which relates back to the time of his contract and possession under it; and that a mere record of a copy of this will in Woodford county, more than 10 years after this purchase, for a valuable consideration, with actual possession and valuable improvements made, even if it could then operate as notice of the limited nature of Mrs. Lewis' estate in the lands, came too late to affect the title of a purchaser who had bought in good faith without notice. Snapp v. Peirce, 24 Ill. 156; Schneider v.Botsch, 90 Ill. 577; Sutherland v. Goodnow, 108 Ill. 528. I think, also, that the mere record of a copy of this will does not, of itself, identify or connect the testator, Romeo Lewis, with this land. The most it shows is that a man by the name of "Romeo Lewis" assumed to make a will in 1842, by which he bequeathed certain lands in Indiana and Illinois to his wife, Jane N. Lewis, and to the heirs of her body; , but it does not seem to me to show enough to connect Mrs. Lewis with these particular lands, or to put a person dealing with her in regard to the lands in question on inquiry as to whether they were affected by this will or not, as there was nothing appearing of record in the county showing that the testator ever owned these lands, or that they came within the operation of this will. Then, too, the document that was put of record August 15, 1866, was not the will, but what "purported to be a copy of the will," with no proof of its execution, or that it had ever been admitted t,o probate anywhere, and did not, in my opinion, operate as notice to anyone that Mrs. Lewis held only a life-estate in these landS under its provisions. We have, then, this defendant Gish holding as purchaser in good faith under a conveyance in fee-simple, without notice of plaintiffs'righta,
to June, a who had colorof title ,this tax-deed. It is true that these. or, ,their ancestors had, as is insisted in their behalf, no right of upon these l&1J,da: llntil Mrs. life-estate; but it does not followthftlt bflcause they had no right of entry, they, or those under whom theprcsent plaintiffs claim, had no right to protect their possible ,estate in, ,;,They could have el,ljoined Mrs. Lewis,or, anyone claimfrom committing waste; and if Mrs. J,ewis neglected or ing refused topaY'ithe taxes, /lnd suffered the property to be sold for taxes, the title in fee,they might have filed a bill in eqthereby uity, and had the property placed .i'n the hands of a receiver, with power to redeemfrptn such,sale. Story, Eq. JUl'. § 913 et. seq.j High, Rec. §§ 11, 672. With these rights to inter/ere for the protection of the propertyJrom the consequences of neglect of the life-tenant, it seems dent to.,roe thatwben Mrs. Lewis,having become clothed with color of titleitl feeJ>y this tax-deedof 184:9, assumed to m.ake a conveyaucein fee to a person who had no notice that her real interest as against the a life-estate, those heirs were bound' to asheirs 'of her hUSband ,was sert their :possible interest in, apt time; that whoever were the heirs at law 'io.1856 of Romeo LewiS, when Mrs. Lewis, by her agent, sold the lands:i:n question in, this suit in fee to Dehority, and put him in possession, thereby d,ealing with the property as jf she were the owner in foo"itwils the duty of those heirs to have interfered, Rnd appealed to the 'proper court for redress. At thet4ne of Mr, Lewis' death, when his will took effect, Mrs. Lewis had no heirs of her body, and his then heirb atJaw,under whom these plaintiffs claim, were the reversioners of the fee in .expeotancy, and in fact ever since the death of Mr. Lewis his heii's at law hll"e-at times been the reversioners in expectancy; and I think it needs no to show that the neglect of these heirs to assert theirpossihie intE>rest in the land in time to rescue it from the operation of the limitation laws of Illinois is binding and effective upon the pres. ent plaintiffs.' . Suppose M:ts.Lewis, after,the death of her husband, in view of the fact that these lands were wholly unproductive, and so being only a burden Upon' her by reason of the annually accruing taxes, had abandoned them a.nd paid no taxes, and this defendant had bought them in at a taxhad entered upon the actsale in 184Q,and, after obtaining a ual possession;, and remained since that time in full possession up to the time ,of;tbis sliit, and had regularly paid all taxes, can there be any doubtwthat,under the statutes of Illinois, he would have obtained a valid .against these plaintiffs? But yet it seems to me .that the case supposeddoe\!lnat'differ in principle from the one made by the facts,as the person ,to whom Mrs. Lewis conveyed her tax-title without notice if he had been the bl;lyer at the stands in precisely the same tax-sale. l . " ; . On the trial, proofs were offered on the part of the plaintiffs tending toslilOiW that:ethere was no record in Woodford county of any judgment which these lands sold at the tax-sale.of 1846.' ,I