A statute of the State of Illinois, passed in 1839, declared
"That hereafter every person in the actual possession of land or
tenements under claim and color of title made in good faith, and
who shall, for seven successive years after the passage of this
act, continue in such possession, and shall also, during said time,
pay all taxes legally assessed on such land or tenements, shall be
held and adjudged to be the legal owner of said land or tenements
to the extent and according to the purport of his or her paper
title."
What constitutes color of title explained.
What is color of title is matter of law, and when the facts
exhibiting the title are shown, the court will determine whether
they amount to color of title.
But good faith in the party in claiming under such color is a
question of fact for the jury.
Hence, where the court decided that the color of title was not
made in good faith, such decision was erroneous. It should have
been left to the jury.
An act of 1835 upon the same subject, passed by the State of
Illinois, also examined and explained.
The case is stated in the opinion of the Court.
Page 59 U. S. 52
MR. JUSTICE DANIEL delivered the opinion of the Court.
The questions determined by the circuit court, whose decision we
are called on to review, arose upon the construction of two
statutes of the State of Illinois which limit the right of action
against the possessors of lands held by purchasers in virtue of
sales and conveyances under the authority of the state, for the
nonpayment of taxes.
The provisions of the statutes in question are as follow:
"January 17, 1835. Sec. 1. That hereafter no person who now has
or hereafter may have, any right of entry into any lands of which
any person may be possessed by actual residence thereon, having a
connected title in law or equity, deducible of record from this
state or the United States, or from any public officer authorized
by the laws of the state to sell such lands for the nonpayment of
taxes, or from any sheriff, marshal, or other person authorized to
sell such lands on execution, or under any order, judgment, or
decree of any court of record, shall make any entry therein except
within seven years from the time of such possession being taken;
but when the possessor shall acquire such title after taking such
possession, the limitation shall begin to run from the time of
acquiring title."
By the statute of 1839 it is enacted
"That hereafter, 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 after the passage of this
act, continue in such possession, and shall also during the said
time pay all the taxes legally assessed on such lands or tenements,
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 shall continue such possession, and continue to pay
the taxes as aforesaid, so as to complete the possession and
payment of the taxes for the term aforesaid, shall be entitled to
the benefit of this section."
In this case in the circuit court, which was an action of
ejectment, the plaintiff's lessee, the defendant in error here,
exhibited in proof a release from the widow of the patentee from
the United States of the premises in question; also deeds of
conveyance from the heirs of the patentee, with the exception of
one of those heirs, who was a minor, and whose estate or interest
in the premises there seems to have been no attempt to
transfer.
Page 59 U. S. 53
The lessee of the plaintiff further proved the possession of the
premises by the defendant at the commencement of the action on the
15th of July, 1851.
The defendant, to maintain the issue on his part, offered to
read in evidence to the jury a deed of the 20th of December, 1823,
from the Auditor of Public Accounts of the State of Illinois to
Nathaniel Wright and Joel Wright for the land in controversy,
reciting the public sale of those lands by the auditor, in
pursuance of the several acts of the general assembly of the state,
and of the act entitled, "An act for levying and collecting a tax
on land and other property, approved February 18, 1823," and the
bidding off the said lands to Nathaniel Wright and Joel Wright as
the best bidders, for the sum of eleven dollars and six cents,
being the tax and costs due thereon for the years 1821 and
1822.
In connection with the aforegoing deed from the auditor, the
defendant offered to read in evidence to the jury a deed, properly
executed and recorded, from the said Nathaniel Wright to the
defendant, Joel Wright for the northeast quarter of section
thirty-four, the premises claimed, and offered further to prove to
the jury that the said defendant had been in the actual possession
of the premises for more than seven years next preceding the
commencement of this suit and had paid all the taxes assessed
thereupon, and the defendant stated by his counsel that the purpose
of offering the evidence was to secure to the defendant the benefit
and protection of the seven years' limitation laws of 1835 and
1839.
To the introduction of this evidence by the defendant the
plaintiff objected, assigning for his objection, the following
causes:
1. That the defendant had neither proved nor offered to prove
that the requisitions of the revenue law of 1823 had been complied
with prior to the sale of said land for taxes as stated in the
auditor's deed, and that the deed was not
prima facie
evidence of these facts.
2. That said deed was void upon its face.
The court excluded the evidence thus tendered by the defendant,
who excepted to the opinion of the court.
The defendant next offered in evidence a deed from the Auditor
of Public Accounts to the defendant dated on the 10th day of
January, 1833, in which it is stated that in conformity with all
the requisitions of the several laws in such cases made and
provided, the auditor had, on the 11th day of January, 1831,
exposed to sale a certain tract of land, being the northeast
quarter of section thirty-four, in township seven north, in range
four east of the fourth principal meridian, for the sum of
Page 59 U. S. 54
one dollar and eighty-two cents, being the amount of the tax for
the year 1830, with the interest and costs chargeable on the said
hands, and that the said Joel Wright had offered to pay the
aforesaid sum for the whole of the said land; and the said Wright
having paid the said sum into the treasury of the state, the
auditor thereby granted and conveyed to the said Wright the whole
of the northeast quarter of section thirty-four as above described,
being the land in controversy, subject to the right of redemption,
as provided by law.
This last-mentioned deed from the auditor was admitted in
evidence without objection, and as well as the former deed from the
auditor to Nathaniel and Joel Wright bearing date on the 20th of
December, 1823, was shown to have been regularly recorded in the
proper recording office.
By a statement of facts agreed between the counsel, it was in
proof on the trial that Joel Wright claiming that he and his
brother, Nathaniel, were owners and tenants in common in fee simple
of the land in controversy, took possession of it in 1829 by
enclosing and putting under actual cultivation a portion thereof,
and that, from time to time, he had extended his enclosures until,
in 1841, he had all the said quarter section under actual
cultivation with the exception of about twenty acres, and that,
from the date last mentioned forward, he had continued in actual
possession and cultivation of the said land, and had paid all the
taxes assessed upon the said land from the year 1840 to 1851,
inclusive of both years, and that the land was of the value of more
than three thousand dollars.
The evidence having been closed on the part of the plaintiff and
on that of the defendant, the plaintiff moved the court for the
following instructions to the jury, namely:
"That the deed offered in evidence by the defendant, of the 10th
of January, 1833, from the auditor to the defendant is of itself
such a title as will protect a party in the possession of land
under the act of 1839, provided it is made in good faith, and
connected with the payment of taxes for seven successive years, and
a continued possession for that time, but if the jury believe from
the evidence that the defendant was in possession of the land in
controversy, claiming to be the owner in fee, in the year 1829, and
so continued to remain in possession until the year 1833, then he
could acquire no title by permitting the land to be sold for taxes
and becoming the purchaser thereof in 1831, and the auditor's deed
to the defendant on the sale of 1831 for the taxes of 1830, given
in evidence by the defendant, conveys no title, and is not a title
obtained in good faith, and such a deed, if obtained in the manner
aforesaid, is not such a title as brings his possession within the
protection of the limitation acts of 1835 and 1839. "
Page 59 U. S. 55
This last instruction having been given as prayed by the
plaintiff, was excepted to by the defendant.
After the closing of the testimony, there were on the part of
the defendant five several instructions prayed of the court. Of
these the first two having been granted, and no exception to them
having been reserved, they are therefore not properly subjects for
comment here.
The third one of these instructions being deemed unimportant,
under the view which we take of this cause, will be dismissed
without particular remark.
The 5th instruction prayed for by the defendant below, the
materiality of which will hereafter be shown, was in the following
words, namely:
"That the questions whether the deed given in evidence was made
in good faith, and whether the defendant has occupied the said land
under said deed in good faith are questions of fact which must be
decided by the jury upon consideration of all the facts and
circumstances given in evidence upon the trial in this cause."
This fifth instruction the court refused to grant, except with
the following qualification, namely:
"That this, as a general proposition, is true, but as a matter
of law, the court charges the jury that any man who is in
possession of land, claiming to be the owner thereof, and who
permits the land to be sold for the nonpayment of taxes, and who
himself becomes the purchaser and acquires a deed under such
purchase, such title cannot be said within the meaning of the law
to be made in good faith."
To the above refusal and qualification by the court, the
defendant in the ejectment excepted.
From the sketch which has been given of the proceedings in this
cause in the circuit court, it is shown that the defendant did not
found his title either exclusively or principally upon the
provisions of the statute of 1835, but relied in defense of that
title, and of his possession, equally, if not chiefly, upon the
statute of 1839, and the acts of the auditor performed in the
execution and under the authority of the latter law. And it is in
viewing this cause as controlled by the provisions of the statute
of 1839 that we regard it as entirely disembarrassed of any doubt
or perplexity which might surround an attempt to rest its decision
upon a construction of the law of 1835. Hence we have dismissed
from our consideration the several questions discussed and ruled in
the circuit court with reference to the law of 1835 as being
irrelevant to the points regularly involved in this cause, which
depend essentially upon the statute of Illinois of 1839.
Page 59 U. S. 56
By the 1st section of this statute, as we have already seen, it
is declared:
"That hereafter every person in the actual possession of land or
tenements under claim and color of title made in good faith, and
who shall for seven successive years after the passage of this act
continue in such possession, and shall also during said time pay
all taxes legally assessed on such land or tenements, shall be held
and adjudged to be the legal owner of said land or tenements, to
the extent and according to the purport of his or her paper
title."
There exists no controversy in this case as to the facts that
the defendant in the ejectment proved the actual possession by him
of the land and the payment of all the taxes assessed thereon for
seven successive years previously to the institution of this suit.
The proof of these facts by the defendant therefore left open under
the 1st section of the statute of 1839 the single inquiry, whether
it was shown or attempted to be shown by him that he held under
claim and color of title made in good faith.
We deem it unnecessary to examine in detail the numerous
decisions adduced in the argument for the plaintiff in error to
define and establish the meaning of the phrase "color of title."
The courts have concurred, it is believed, without an exception, in
defining "color of title" to be that which in appearance is title,
but which in reality is no title. They have equally concurred in
attaching no exclusive or peculiar character or importance to the
ground of the invalidity of an apparent or colorable title; the
inquiry with them has been whether there was an apparent or
colorable title under which an entry or a claim has been made in
good faith.
We refer to a few decisions by this Court which are deemed
conclusive to the point that a claim to property under a
conveyance, however inadequate to carry the true title to such
property and however incompetent might have been the power of the
grantor in such conveyance to pass a title to the subject thereof,
yet a claim asserted under the provisions of such a deed is
strictly a claim under color of title, and one which will draw to
the possession of the grantee the protection of the statutes of
limitation, other requisites of those statutes being complied with.
We will lastly, upon this point, refer to a recent decision of the
Supreme Court of the State of Illinois which not less for its
intrinsic strength than on account of the circumstance that it is
an interpretation by the highest judicial authority of the state of
the peculiar local legislation of that state is entitled to special
attention and respect.
In the case of
Gregg v. Lessee of Sayre
and Wife, 8 Pet. 253-254, in which the question was
raised as to the effect of a deed impeached either for fraud in the
grantor or want of estate in him coextensive with the terms of the
instrument,
Page 59 U. S. 57
this Court said:
"It is not necessary to decide whether these conveyances were
fraudulently made by Ormsby, the grantor, or not. The important
point is to know whether Gregg and wife the grantees had knowledge
of the fraud if committed, or participated in it. This knowledge
the circuit court charged the jury was immaterial, as the fraud of
Ormsby rendered the deeds void, and consequently they could give no
color of title to an adverse possession. This construction is
clearly erroneous. If Ormsby be justly chargeable with fraud, yet
if Gregg and wife did not participate in it; if, when they received
their deeds, they had no knowledge of it, there can be no doubt
that the deeds do give color of title under the statute of
limitations. Upon their face, the deeds purport to convey a title
in fee, and having been accepted in good faith by Gregg and wife,
they show the nature and extent of their claim to the
premises."
The case of
Ewing v.
Burnett, 11 Pet. 41, was one in which plaintiff and
defendant claimed under conveyances from the same grantor. The
grantee in the junior deed relied upon his title as being protected
by proof of adverse possession for the time of limitation. The
introduction of this deed was objected to because, as it was
alleged, the defendant had notice of the claim of the grantee in
the elder conveyance. To an objection thus urged to the
introduction of the junior deed this Court said that there were two
answers: first, that the jury might have negatived the proof of
such notice; secondly, though there was such notice of a prior deed
as would make a subsequent one inoperative to pass a title, yet an
adverse possession for twenty-one years, under claim and color of
title merely void, is a bar.
So late as the year 1851, in the case of
Pillow v.
Roberts, 13 How. 472, speaking of the protection
extended by statutes of limitation to a possession held under claim
of color of title, this Court said:
"Statutes of limitation would be but of little use if they
protected those only who could otherwise show an indefeasible title
to the land. Hence, color of title, even under a void and worthless
deed, has always been received as evidence that the person in
possession claims adversely to all the world."
And again, in the same case, it is said, in order to entitle the
defendant to set up the bar of the statute after five years'
adverse possession, he had only to show that he and those under
whom he claimed held under a deed from a collector of the revenue
of lands sold for the nonpayment of taxes; he was not bound to show
that all the prerequisites of the law had been complied with in
order to make the deed a valid and indefeasible conveyance of the
title. If the court should require such proof before the defendant
could have the benefit of this law, it would
Page 59 U. S. 58
require him to show that he had no need of the protection of the
statute before he could be entitled to it. Such a construction
would annul the statute altogether, which was evidently intended to
save the defendant from the difficulty, after such a length of
time, of showing the validity of his tax title.
The case of
Woodward v. Blanchard, decided by the
Supreme Court of Illinois within a few months past, was like the
case at present under review -- an action of ejectment against a
purchaser of land sold for the nonpayment of taxes.
The defendant in the ejectment relied for the maintenance and
protection of his title and possession upon the statute of Illinois
of 1839 already quoted, professing to hold under claim and color of
title as expressed in that statute, all the other requirements of
the law being fulfilled. The defense thus alleged superinduced
necessarily a construction of the statute as to the signification
of the phrase, "claim or color of title made in good faith," and in
their interpretation, the court instituted a comparison between its
provisions and those of the statute of 1835, and pointed out the
distinctive features of each. With respect to the law of 1839, they
said:
"There is in this act not only a change in the facts, but an
evident intention to dispense with part of the requirements of the
former act and to relax the strictness required in others.
Possession is retained in one case, but residence is dispensed
with; connection in the chain to be deduced of record, and its
deduction from specified sources are dispensed with; in place of
these, claim and color of title made in good faith, with the
payment of taxes, are substituted as to lands in possession. But as
to another class of lands, vacant and unoccupied, possession and
claim are both dispensed with and the party is only required to
show color of title in good faith."
Further on, the court said:
"We are therefore, under this defense, not driven to the springs
or sources of the title to inquire if they be pure, nor to the
successive channels through which it may pass, for the purpose of
removing obstructions to or difficulties in its course and
transmission. But we come at once to the party defendant, to
inquire if he had a claim and color of title with his possession,
at the beginning of this period; if they were made in good faith
and his possession continued and was accompanied by the payment of
taxes for seven successive years."
What say the court is claim? The act of taking possession, if
otherwise unexplained, will be referable to the paper title, and
understood as making claim under it. Color of title may be made
through conveyances, or bonds, or contracts, or bare possession
under parol agreements.
Nor is it at all important whether the title be weak or strong,
for color of title is acquired to establish an adverse
possession
Page 59 U. S. 59
for the operation of the statute, which commences by disseisin
of the rightful owner with a claim of the land. But our statute
requires this color of title to be accompanied by a written
evidence, "a paper title," and an act or motion of the mind. It
must be in good faith. Defects in the title may not be urged
against it as destroying color, but, at the same time, might have
an important and legitimate influence in showing a want of
confidence and good faith in the mind of the vendee, if they were
known to him and he believed the title therefore to be fraudulent
and void. What is color of title is matter of law, and when the
facts exhibiting the title are shown, the court will determine
whether they amount to color of title. But good faith in the party
in claiming under such color is purely a question of fact, to be
found and settled as other facts in the cause. We can entertain no
doubt in this case that the auditor's deed to the purchaser at the
tax sale is color of title in Woodward, in the true intent and
meaning of the statute, and without regard to its intrinsic worth
as a title. "Good faith," said the court,
"is doubtless used here in its popular sense, as the actual
existing state of the mind, whether so from ignorance, skepticism,
sophistry, delusion or imbecility, and without regard to what it
should be from given legal standards of law or reason."
We have quoted at some length from the opinion of the Supreme
Court of Illinois both on account of the clearness and accuracy of
its reasoning and on account of the respect which is due to it as
an interpretation of a statute of the state by her supreme judicial
authority. We entirely approve of the exposition of the Supreme
Court of Illinois in its opinion of what constitutes color of title
upon well established general principles and within the scope and
meaning of the statute of 1839, and in relation to the nature of
the question of what constituted good faith in the possessor of
such colorable title, and also as to the manner in which that
question should be determined -- namely as a question of fact
determinable by the jury, and not by the court.
But the court in the case before us withdrew from the jury, and
assumed upon itself the right of deciding upon the motives and
intention of the defendant in the ejectment, and it was with the
view, doubtless, of exercising this function that the qualification
to the fifth prayer of the defendant was added by the court and
that the court had previously, at the instance of the plaintiff,
instructed the jury that although the deed of the 10th of January,
1833, from the auditor to the defendant, was of itself, such a
title as would protect the party in possession under the act of
1839, connected with payment of taxes, and continued possession for
the period of limitation, yet if the
Page 59 U. S. 60
defendant being in possession of the land in controversy, had
permitted it to be sold for taxes and had himself become the
purchaser thereof, the deed of the auditor in pursuance of such
sale could convey no title to the defendant, and was not a title
obtained in good faith. The accuracy or inaccuracy of the legal
positions taken by the court in this instruction we deem it not
necessary at present to determine.
We hold that in assuming to decide upon the question of good
faith on the part of the defendant, the court exerted an authority
not legitimately belonging to it -- a power exclusively
appertaining to the jury. We further hold that it was error in the
court to decide as it did upon the prayer of the plaintiff in the
ejectment, and by its qualification annexed to the fifth prayer of
the defendant, that the deed from the auditor of the 10th of
January, 1833, was not such an instrument as could be adduced in
evidence under the statute of 1839, in order to show color of
title. We are therefore of the opinion that the decision of the
circuit court be
Reversed, and that this cause be remanded to that court with
directions to order a venire facias de novo for the trial thereof
in conformity with the law as herein expounded.