Opinion of the Court. title to this eighty-acre tract of land should be held to be in Robbins or not. It is shown that Mitchell knew of the purchase of Robbins from Bunn, and that the record showed Robbins to be the owner of the land; yet, as has been seen, he at no time sought to intervene in the pending proceeding, or asserted any right adverse to the Robbins title. He thus permitted, with full notice thereof, Robbins to be clothed with the apparent legal title, and to continue for many years in the undisturbed possession of the land, without taking any steps to protect those who might deal with Robbins upon the faith of such legal title and possession. Under these facts, when taken in connection with the affirmative facts hereinafter set forth, he and those claiming under him, should be estopped, in equity, from asserting their title, either legal or equitable, as against Gilbert and Gay, who, as we have seen, loaned their money upon the faith of such title, in good faith, and without notice of any adverse claim. It remains to consider the errors assigned by Robbins. The defense set up by him was the Statute of Limitations: First, of twenty years; and second, seven years; that Mitchell, in his lifetime, quitclaimed, for a valuable consideration, the land to Thomas J. Bunn, and that the grantees of Mitchell are, by the acts of Mitchell inducing Robbins to purchase of Bunn, estopped from asserting title deraigned from said Mitchell. First-In respect of the defense of twenty years' limitation, it is sufficient to say, that the proof fails to show possession of the land by Robbins for the necessary period. He took possession in 1856 or 1857, by breaking about thirty acres of the eighty-acre tract in question, and sowed it in wheat. The land was not fenced. There was, however, a shanty on the same or the other eighty-acre tract before mentioned,-which, is not definitely shown. After this wheat crop was harvested no other acts of possession are shown until 1871, (a period of fifteen years,) when one Haynie again broke the land. It is not shown that either Bunn or Robbins was in possession Opinion of the Court. during the period named, and if they had not abandoned it, their possession was not of that open, notorious and exclusive character which the law requires in such cases, and so we hold that the defense of twenty years' adverse possession was not maintained. Second-The defense of seven years' possession and payment of taxes, under claim and color of title, can not be maintained. Robbins first acquired color of title by the deed of Bunn and wife to himself, April 8, 1868. Prior to that time he held simply the note and mortgage given by Thomas J. to Lewis Bunn, assigned to himself, which was, as it purported to be, simply the evidence of, and security for, the payment of money. It did not purport to convey title. It is true Robbins paid taxes for seven successive years,—from 1863 to 1869, inclusive; but for five of these years he had no color of title, so that the payment of taxes, prior to his deed in 1868, was unavailing to create a bar. Nor, as we have seen, does it appear that he was in possession of the land during any of said years. Third-The two other defenses may be considered together, and present questions of no inconsiderable difficulty. Both present questions of fact, which necessarily involve a somewhat extended consideration of the evidence. Robbins testifies that he was not satisfied to purchase of Bunn until he had first seen Mitchell; that he saw Mitchell, and inquired of him if he (Mitchell) had any claim upon the land; that Mitchell replied that he had had a suit with Bunn about it, and that Bunn had beat him out of it, and that he had told Bunn if he would pay up the costs in the suit, he (Mitchell) would make him (Bunn) a quitclaim deed to the land at any time; that he did not consider he had any further claim to the land, and for him (Robbins) to go on and buy the land of Bunn; that he would make Bunn a quitclaim deed to the land any time he called on him for it. He testifies that on the same or the next day he met Bunn at Wis Opinion of the Court. mer's office, in Bloomington; that Wismer advised that the mortgage from Thomas J. to Lewis Bunn on this land for $1000 had better be assigned to the witness, and then foreclosed, and the title got in that way. He further testified: “I told him (Wismer) what Mitchell had said, and he thought that Bunn had better get a quitclaim deed from Mitchell. Mr. Bunn had to come to Bloomington for the note and mortgage, or send for it, and the next day Bunn and I met at Wismer's office. He (Bunn) had the note and mortgage, and had got the quitclaim deed from Mitchell, and had all the papers there. The quitclaim was signed by John T. Mitchell and his wife. It was for all the land he claimed any interest in. I examined and read the deed myself. The deed was made to Thomas J. Bunn. After looking over the papers, Mr. Wismer concluded that this deed wasn't necessary. We could go on and foreclose under the mortgage. My best recollection is, Bunn said to Wismer, 'What do we want with the deed?' Wismer said it wasn't necessary, and Mr. Bunn tore it up and threw it into the stove. Wismer said, 'You may as well destroy it. It don't cut any figure as long as Mitchell had acknowledged he had been beaten in the suit, and had no further claim on it.' This all occurred before I paid him the money. T. J. Bunn did not make me any deed at that time. In my conversation with Mitchell, I told him I didn't feel satisfied to pay any money until I had seen him and had a talk with him. He (Mitchell) then said, that so far as he was concerned he didn't consider he had any claim on the land, but he had told Bunn, if he would pay the costs in the suit he would make him a quitclaim deed at any time, and if I made a trade with Bunn it would be all right-that the land belonged to Bunn." On cross-examination, he testified that he took the deed mentioned, in his hands, and read it, but could not recollect before whom it was acknowledged, and that Wismer, Bunn and himself were then present; that it was a day or two after he had a talk with Mitchell that he concluded the pur Opinion of the Court. chase; that Bunn destroyed the deed, and repeated substantially the testimony upon the examination in chief. Thomas J. Bunn, a banker of Bloomington, testified: "I sold Robbins the land I pre-empted in DeWitt county. I think it was about 1855 or 1856. Won't be positive about the time. My recollection was, the sale was for about $800. He paid me the money. We consulted with Mr. Wismer, I think, about the title. My recollection is, that Wismer advised Robbins to have a quitclaim deed from Mitchell. Mr. Mitchell was in the office, and the matter was talked over. The substance of the conversation was, he had no objection to giving the quitclaim deed, or was willing to give it. My recollection is, that Mitchell made the proposition that I pay the costs in the contest between him and me about this land, and that my father paid the costs. The settlement with Mitchell in regard to the matter was made with my father. My recollection is, that Mr. Mitchell made the quitclaim deed either to Robbins or to my father, don't remember which-think it was Robbins. Don't think I ever had a deed myself-think it was among the papers when Robbins and I finally closed the trade. My recollection is that I saw it. I have no recollection of examining the deed at all. Do not know what became of it." On cross-examination he testified: "Mitchell was in Wismer's office at the time the trade was being closed, and was talking about the quitclaim deed. Do not remember whether he was talking with me, or father, or Robbins,—perhaps to all of us. My recollection is, that the deed was made at the time the trade was closed, but perhaps not at the first conversation. Don't think I ever read the deed myself. It was in Wismer's hands, with other papers, when the trade was closed. All I know about it was what Mitchell said. I saw the deed, but did not read it. Saw the outside-perhaps the inside. My recollection is, the trade was closed when Mitchell was in the office. The papers were all made out conveying the property, and left in Wismer's hands. I think the sale, in the first Opinion of the Court. place, was of the note and mortgage. Don't remember whether I made him a deed for the land then, or not. I turned over to Robbins the note and mortgage, and the deed, if there was one made by me. Have seen none of the papers since. I have no knowledge of any of them being destroyed in my presence. If I made a deed to Robbins at the time of the trade, I have made him two. Can't tell when the last one was made,-may be six or seven years ago. Don't recollect that Wismer ever advised that any of the papers be destroyed. At that time I had made no deed to the land. Don't think I ever paid Mitchell any money-think the matter was settled between him and father. My recollection is, we were all day making the trade, and Mitchell was in and out several times. The talk about the deed was before the trade was closed. My recollection is, that the trade with Robbins was a sale of the land to him by turning over the note and mortgage to him, and that whatever was necessary to be done to make the transfer of my interest in it, or my father's interest, was done, and that was why I thought some deed was made by me or my father at the time. I had no patent at that time, and other parties were claiming the land. It may be possible that the only transfer made at the time was the note and the mortgage. We intended to convey to Robbins all the interest we had. Am not sure there were any other papers transferred besides the note and mortgage." On re-direct examination he said: "Mitchell knew Robbins was buying the land. We were talking about it in his presence. Wismer was satisfied to advise Robbins to buy the land if Mitchell gave a quitclaim deed, and Mitchell was willing to give a deed. He didn't care about fighting the matter further. Mitchell made the statement as I stated in my evidence, and Wismer advised Robbins, after Mitchell made the quitclaim deed, that there were no objections to it, and for him to close the trade. The conversation I heard between Mitchell and whoever he was talking to, was in Wismer's office, in the presence of Robbins and myself, and I 4-129 ILL. |