US SUPREME COURT DECISIONS

Under the first section of the statute of limitations of March 2, 1839, of Illinois, entitled "An act to quiet possessions and confirm titles to land," which section gives title to persons in

"actual possession of land, or tenements, under claim or color of title made in good faith, and who for seven successive years continue in such possession, and during said time pay all taxes,"

the bar begins with the possession under such claim and color of title, and the taxes of one year may be paid in another. But under the second section of the same act, which section says that "whenever a person having color of title, made in good faith, to vacant and unoccupied land, shall pay all taxes for seven successive years," he shall be deemed owner, the bar begins with the first payment of taxes after the party has acquired color of title. Hence, in a trial of ejectment, when the said different sections of this statute are set up, any instructions, outside of the facts, which do not keep this distinction between the two sections in view, and by which the jury, without being satisfied as to the requisite possession under the first section, might, under the second section have found for the party pleading the statute upon the ground that the taxes had been paid for seven successive years, although the first payment was made less than seven years before the action was commenced, will be reversed upon the well settled principle that instructions outside the facts of the case or which involve abstract propositions that may mislead the jury to the injury of the party against whom the verdict is given are fatally erroneous.

2. To prove payment of taxes, the defendant offered in evidence two receipts without dates, and to prove the date offered two letters having dates, which letters enclosed the receipts; also to prove the date, and the agency of the person who had made the payment and written the letters, offered certain entries in the account books of the parties on behalf of whom the payment was alleged to have been made. These persons chanrobles.com-red

Page 68 U. S. 638

residing away from the land, and the clerk who made the entries being dead, of which death and of the handwriting proof was also offered. Held that the evidence was all admissible: the receipts on the plainest principles of evidence; the letters and entries on principles not so plain, but still admissible, as falling within the category of verbal facts; neither of them being hearsay nor declarations made by the party offering them, and tending, both of them, to illustrate and characterize the principal fact, to-wit, the transmission of the receipts, and to put that fact in its true light, and to give to it its proper effect.

This was an action of ejectment brought in the Circuit Court for the Southern District of Illinois by Beaver, the plaintiff in error, against Taylor to recover premises described in his declaration. The action was brought on the 17th July, 1854. The date is important. Upon the trial, the plaintiff having shown title in himself, the defendants relied upon the first and also upon the second section of the Statute of Limitations of the State of Illinois of March 2, 1839, as making a bar. [Footnote 1] The two sections were thus:

"First. 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 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."

"Second. Whenever a person having color of title made in good faith, to vacant and unoccupied land, shall pay all taxes legally assessed thereon for seven successive years, he or she shall be deemed and adjudged to be the legal owner of said vacant and unoccupied land to the extent and according to the purport of his or her paper title."

The defendants, to show color of title, gave in evidence a certain deed. The deed itself was admitted to be void, but the good faith of the defendants and the sufficiency of the deed for the purpose for which it was offered were not disputed. chanrobles.com-red

Page 68 U. S. 639

The defendants also gave evidence tending to prove possession for more than seven years before the commencement of the suit.

In making proof of the payment of the taxes, the defendants offered in evidence two receipts, without date, from the collector to one Gilbert, one for the state and county taxes and the other for the road tax, of the year 1847. They proved that the "collector had made a final settlement of the state and county taxes for the year 1847 with the proper officers," and they gave evidence tending to prove that during the years 1847 and 1848, Gilbert was the agent of Taylor & Davis (claimants of the premises under the statute) in respect of the taxes. The plaintiffs objected to the receipts as evidence, because it did not appear when the taxes were paid nor that Gilbert had any connection with the color of title relied upon by the defendants. To meet the objection as to the time of payment, the defendants offered in evidence two letters from Gilbert to Taylor & Davis, one of the 10th of March, 1848, enclosing the receipt for the state and county taxes and the other of the 4th of May, 1848, enclosing the receipt for the road tax. They offered also certain entries in an account book of Taylor & Davis relating to the property in question and other property held by them in the same right. The letter gave an account in detail of Gilbert's debits and credits as agent in respect of the taxes, and referred particularly to the receipts in question. The books contained entries relating to the same subject and showing the recognition of his agency in the transaction. It appeared that the book was kept in Philadelphia, where Taylor resided, and that the clerk who made the entries was dead. Proof was offered of his death and of his handwriting. The letters and book were also objected to. The court admitted all the evidence, and the plaintiff excepted.

The evidence being closed, the counsel of the plaintiff asked the court for nine different instructions to the jury, the only ones important to be here mentioned, however, being three, which were in regard to the defense arising under the second section of the statute of limitations already chanrobles.com-red

Page 68 U. S. 640

mentioned. In regard to such defense, the instructions prayed for were these:

"1. That if the jury believe from the evidence that the land in controversy was vacant and unoccupied in the year 1847, they will find for the plaintiff unless they also believe from the evidence that Taylor & Davis paid the taxes assessed on said lands for the year 1847 before the seventeenth day of July, 1847."

"2. That the second section of the act of 1839 does not begin to run until the payment of the first of the series of taxes required by that act, and the bar under that section is not complete until the end of seven years from the time of the payment of the first of said series of taxes."

"3. That to constitute a bar under the second section of said act of 1839, the payment of taxes must concur during seven successive years prior to the bringing of suit with the color of title, and it must also appear to the jury by the evidence that during such seven years the land was vacant and unoccupied, that such bar does not begin until the first of such series of taxes is paid by the person having color of title, and is not complete until the payment of taxes for seven successive years thereafter has concurred with such color of title, and that the burden of proof of such facts as constitute such bar is on defendants."

The court refused to give these instructions and instructed the jury as follows:

"Three things must unite to give a party the benefit of this section:"

"1. He must pay all taxes levied on the land for seven successive years."

"2. The land must for the same time be vacant and unoccupied."

"3. He must during the same time have color of title to the land acquired in good faith."

The court had previously charged that to bring a party within the first section:

"1. He must have actual possession of the land for seven successive years."

"2. He must pay all taxes levied on the land for the same seven years. "

Page 68 U. S. 641

"This possession and payment must be under claim and color of title to the land made in good faith."

The plaintiff excepted to the instructions given, including those in regard to the second section, and to the refusal to instruct as prayed. The jury found for the defendants.

On error here, the matters complained of were the admission of the evidence excepted to and the refusal to give the instructions as asked, and the giving of those that were made.