1. Under the limitation laws of Illinois which declare in
substance
"that whoever has resided on a tract of land for seven
successive years prior to the commencement of an action of
ejectment, having a connected title in law or equity deducible of
record from the state or the United States, can plead the
possession in bar of the suit,"
it is not necessary that the entire title of the defendant be
evidenced by acts of record. If the source or foundation of the
title is of record, it is available to every person claiming a
legal title who can connect himself with it, by such evidence as
applies to the nature of the right set up.
2. If a party to a contract does all that it can be reasonably
expected that he will do, he will be considered in equity as having
performed his part of the contract so far as to come within the
limitation laws above mentioned, as,
ex gr., if a party
bound to pay money to an agent of his creditor resident beyond
seas, offer to pay it to one who was the agent of that creditor,
and who declines to receive it only because he had heard rumors
Page 81 U. S. 473
of the principal's death, and had always been and still is ready
to pay it to anyone having authority to call for it.
3. Where A. in A.D. 1823 conveys to B., in trust for C.,
habendum "to the said party of the second part his heirs
and assigns," and B. dies in 1845, and C. conveys in 1848, equity
would find a way to protect C.'s grantees against a deed made by
B.'s heirs in 1864, supposing such a deed made without undue
influence, a supposition hard to make.
4. Where it power of attorney is made by husband and wife,
French people resident in France, to sell lands in Illinois, the
power, a long French instrument with the usual verbiage of the
style de notaire, speaking of the lands as lands which
"
Mr. and
Madame," &c., own there -- there
being evidence that the husband owned land there, but none that the
husband and wife did, the presumption is that the joinder of the
wife was made to alienate some supposed right of dower, and not to
describe lands owned by the wife and husband jointly, instead of by
the husband alone; this at least in favor of a
bona fide
purchaser, long in possession.
5. A mistake in the baptismal name of an obligor to a bond
executed by his attorney duly authorized to execute a bond in his
right name does not vitiate the bond, the error being shown to be
purely accidental.
Certain statutes of limitation in Illinois, [
Footnote 1] declare in substance that whoever has
resided on a tract of land for a term of seven successive years,
prior to the commencement of an action of ejectment, "having a
connected title in law or equity deducible of record from the state
or the United States," can plead the possession in bar of suit to
dispossess him.
These provisions of limitation being in force, Dolton sued Cain,
A.D. 1865, in ejectment, to recover a piece of land in the state
just named.
The plaintiff showed as title,
1st. A patent, A.D. 1818, from the United States to one
Stephenson for the land.
2d. A deed, A.D. 1820, from Stephenson to one McGuire.
3d. A deed, A.D. 1823, from McGuire "to Auguste Thiriat, in
trust for Rene Marie Ferdinand Jacquemart" (a resident of France),
the
habendum clause being thus:
"To have and to hold the said premises with the
appurtenances
Page 81 U. S. 474
unto the said party of the second part, and his heirs and
assigns forever."
4th. The death of Thiriat in 1845, and of Jacquemart in 1848; no
more particular dates being shown.
5th. Conveyance, A.D. 1864, by the heirs of both Thiriat and
Jacquemart, to Dolton (the plaintiff).
Title in Jacquemart having been, as above stated, shown by the
plaintiff, the defendant relied on:
1st. August 10, 1847, a power of attorney, "each one for
themselves," from
Rene Marie Ferdinand Jacquemart and
wife, to F. R. Tillon and W. L. Cutting, with power of
substitution, authorizing them to sell any lands in Illinois "which
Mr. and Madame Jacquemart at present own; and in which
the said constituents have interests, of any kind soever
to be protected," and "to sign the contracts of sale in the
respective names of the constituents."
2d. September 20, 1847. A substitution by Tillon and Cutting of
one Cockle, to their power to sell &c.
3d. Proof that on the 29th July, 1848, Cockle as attorney for
Jacquemart and wife, sold the land to Cain, the defendant, for
$300; of which $100 was to be paid down, and the residue secured by
three notes, one for $68, at one year, and two for $66 at two and
three years respectively; that the $100 was paid and the three
notes given; that contemporaneous with the sale, he, Cockle,
professing to act as attorney of
Jean Ferdinand Jacquemart
(the name of
Jean instead of
Rene Marie, having
as Cockle himself testified, been signed "by inadvertence and
mistake," and "the intention having been to execute the instrument
in Jacquemart's true name,") executed and gave to Cain a bond for
$600, reciting the sale and the terms of it, and conditioned that
if Cain paid the notes on the days specified for their payment, and
Jacquemart should upon such full payment of the purchase money
execute and deliver to Cain a warranty deed with the usual
covenants, then the bond should be void; that the sale was reported
within a month to Tillon and Cutting, who approved it; that the
first and second notes were paid as they came
Page 81 U. S. 475
due, and with the $100 cash were devoted by Cockle to the paying
of taxes on other lands of Jacquemart; that Cain offered payment of
the third note at its maturity, but that Cockle refused to receive
it, replying to Cain's offer to pay it, that it was rumored that
Jacquemart was dead; that Cain had always been ready and willing to
pay the note which from the cause mentioned was remaining unpaid,
but that he did not know who was entitled to receive the money.
4th. Proof that the defendant took possession of the land very
soon after his purchase, and had occupied it continuously by
himself or his tenants from that time till the time of the suit
brought (A.D. 1865), and for seventeen years had paid taxes on
it.
On the facts thus proved, the court below decided that the
possession of Cain was protected by the limitation laws of
Illinois, already in substance stated, and gave judgment
accordingly. From this judgment the plaintiff sued out the present
writ of error. The sole question in the case was, whether the
defendant, Cain, was within the protection of these laws.
Page 81 U. S. 476
MR. JUSTICE DAVIS delivered the opinion of the Court.
The limitation laws of Illinois relied on by the defendant, in
substance, declare that whoever has resided on a tract of land for
a period of seven successive years prior to the commencement of an
action of ejectment, having a connected title in law or equity
deducible of record from the state or the United States, can plead
the possession in bar of the suit.
It is objected that the entire title of the defendant is not
evidenced by acts of record, but this is not necessary. If the
source or foundation of the title is of record it is available to
every person claiming a legal or equitable interest under it who
can connect himself with it by such evidence as applies to the
nature of the right set up. [
Footnote 2]
Is the right set up by Cain, then, within the purview of the
statute?
It is conceded to be, if the bond was executed under a valid
power of attorney, coupled with full payment of the purchase money,
and the obligor had the legal title to the land. This concession
was necessary, because it is too plain for controversy that a union
of these elements would constitute a complete equitable title,
which a court of chancery, on the
Page 81 U. S. 477
proper application, would perfect into a legal title. But there
are other principles by which an equitable title can be tested,
and, in their application to this case, relieve it of all
difficulty. If a party has done all that could reasonably be
expected of him to perform his part of the agreement, it will be
considered, in equity, as having been done. Cain is within this
condition. He purchased the land from Cockle, paid him all he
agreed to pay, except the sum of $66, and this he was ready and
willing to pay, but Cockle would not receive it, on the plea that
it was rumored his principal was dead. Was not this offer
equivalent to payment? What more, under the circumstances of this
case, would a court of equity require? It would be a harsh rule to
say that the purchaser should lose his land because he did not
institute inquiry, in France, to ascertain whether the rumor of
Jacquemart's death was well founded or not. There was no revocation
of the power, and Cockle was the property person to receive the
money, unless Jacquemart were dead, and there is nothing in the
record to show that Cain ever received any information on the
subject, except what was contained in the reply of Cockle when he
offered to pay him the money. Naturally a man in the predicament of
Cain would rest in security, until advised by Cockle that he could
safely pay the money to him, or until someone having authority
called upon him for payment. This was never done, and after sixteen
years' residence on the land, he is called upon to surrender it
because he did not employ unusual means to ascertain the proper
parties to whom the small balance due on the land should be paid.
If there were no limitation law in Illinois applicable to this
case, the action of ejectment would, on proper application, have
been enjoined until Cain could, through a court of equity, have
perfected his title so as to make it available as a legal defense
in a court of law. If, then, Cain had such a title as a court of
equity would recognize and convert, by its decree, into a legal
title, it must be considered a title in equity within the meaning
of the statute. Indeed it is difficult to conceive what the law
does mean by a title in equity if this be not
Page 81 U. S. 478
one. It must be something less than a legal title, else these
words in the statute can have no effect. The law was designed to
protect both kinds of title alike, and unless equal influence is
extended to both, there is a practical repeal of a portion of the
statute. In no proper sense can it be said that Cain broke his
agreement. It is true he did not formally tender the money to
Cockle, but this would have been a useless act, as Cockle told him,
on his application to pay, that he could not receive the money.
Besides, he had good right to suppose, from what had previously
occurred, that the offer to pay Cockle was as valid as the offer to
pay Jacquemart.
Why, then, has not Cain, having shown a record foundation,
brought himself within the scope of the statute?
It is urged as an additional reason against this that Jacquemart
did not own the legal title, because one of the mesne conveyances
made in 1823 was to Thiriat in trust for Jacquemart. This is true,
but Thiriat died in 1845, and Jacquemart, the beneficial owner of
the land, assumed to have the right to sell it in July, 1848, when
he executed his letter of attorney to Tillon and Cutting, with
power of substitution. Nothing is heard from the heirs of Thiriat
for a period of nineteen years from the death of their ancestor
when, in 1864, they convey, as do also the heirs of Jacquemart, the
tract of land in controversy to the plaintiff. After such a lapse
of time, in the absence of any proof on the subject, it is
difficult to resist the conclusion that some undue influence must
have been used to procure these conveyances; but be this as it may,
the title of Cain is not less an equitable one on account of them,
and, if so, the statute will not allow his possession, rightfully
obtained and continued the requisite length of time, to be
disturbed. Without discussing the effect of the deed of Thiriat's
heirs in its application to this case, it is enough to say that a
court of equity, looking through forms to the substance of things,
would find a way to protect Cain's purchase.
It is urged as an additional reason why this defense cannot
prevail that the bond is in the name of Jacquemart
Page 81 U. S. 479
alone, while the power was to convey the joint property of
husband and wife. There would be some force in this position if the
original deed to Thiriat had been in trust for the wife as well as
the husband; but as this was not the case, the joinder of the wife
could only have been intended to alienate any supposed right of
dower in the event that she survived her husband. She had no
present title to the land, either legal or equitable, and although
Cockle was empowered to use her name as well as her husband's in
any instrument of sale he might execute, the failure to do so
cannot in any event operate to invalidate the bond for a deed which
he gave to Cain.
It is hardly necessary to notice the objection that Jacquemart's
name is incorrectly given in the contract of sale. Cockle testifies
that this was a mistake, and it is the business of a court of
equity to see that Cain is not harmed by it.
On the whole case, we are of the opinion that the defendant is
within the protection of the limitation laws of Illinois, which he
invoked for his defense and which he had a right to do for that
purpose, although the title used to accomplish this object could
not be employed by a plaintiff in an action of ejectment, who can
only recover when he has the paramount legal title.
In conclusion, it is proper to state that we have examined the
decisions of the Supreme Court of Illinois to which we have been
referred as affecting the question at issue, and do not find
anything decided which militates against the views we have
presented.
Judgment affirmed.
[
Footnote 1]
Revised Statutes of 1845, § 8, chapter 24;
id. §§ 8 and
11, chapter 66.
[
Footnote 2]
Collins v. Smith, 18 Ill. 163;
Poage's Heirs v.
Chinn's Heirs, 4 Dana 4.
