Sidebilder
PDF
ePub

Opinion of the Court.

payment of taxes under claim and color of title made in good faith for more than the statutory period." The court also said: "It is clear, therefore, unless there is something in the facts of this case which takes it out of the operation of the statute, the right to maintain the present proceedings is barred by the limitation act of 1839. It is a fundamental principle in the law of limitations that the statute never commences running until the right of entry accrues, and since by the limitations of the deed from Hugh Rhodes to Mrs. Jennings, under which appellees [the remainder-men] claim, their right of entry did not accrue until her death, which occurred less than seven years before the commencement of the present proceedings, it would seem to follow that this proceeding is not barred by the limitation act of 1839, and such undoubtedly would be the case if that deed had been properly recorded, or if appellants and those under whom they claim had purchased with notice of appellees' rights. But that deed was never recorded, and, as already stated, there is nothing to show that appellants, or their immediate grantors, had notice of its existence."

It was contended, in that case, that the administrator's report, showing the conveyance of the land to Mrs. Jennings for life, with remainder to the named children of her deceased husband, was constructive notice of the rights of those in remainder. To this the court replied that if the object of the suit had been "to compel the administrator to convey these particular lands, then we would have no hesitancy in holding the record of that case constructive notice of the rights of those claiming under the decree in it, whether the deed was placed upon record or not. But such was not the object of that suit. Neither the decree nor the pleadings in that case contain any description of these lands, or even make the slightest reference to them." It was held that purchasers were not bound to look beyond the judgment or decree and the legal effect it might have on the title which was the subject of inquiry, and were not chargeable with constructive notice of every fact that might appear on the files of the case in which such decree was rendered. In reply to the suggestion that the tenant for life, Mrs. Jennings, was bound to pay all taxes, and as the persons,

Opinion of the Court.

holding under the warranty deeds, succeeded to that estate, they were bound to pay them, and, therefore, could not avail themselves of the limitation act of 1839, the court said: "Conceding such would have been the case if the Jennings deed had been put upon record, or if appellants and those under whom they claim had purchased with notice of that deed, yet appellants claim, as we have already seen, adversely to appellees, and independently of any rights acquired through the Jennings deed, and insist that inasmuch as that deed was not placed upon record, and they did not otherwise have notice of it, they are not to be affected by its provisions; and in this we think they are right. The recording and limitation laws are both a part of the law of the State, and of equal force and validity, and the court should so construe and apply them as to effect uate the objects and purposes of the legislature in adopting them. The 30th section of chapter 30 of the Revised Statutes, entitled 'Conveyances,' provides that all deeds, mortgages, etc., shall take effect and be in force from and after the time of filing the same for record and not before, as to all creditors and subsequent purchasers without notice, and all such deeds shall be adjudged void as to all such subsequent purchasers without notice until filed for record. To hold that appellants under the facts in this case are to be affected in any manner by the Jennings deed, would be to simply disregard this plain provision of the statute, which we are not permitted or inclined to do. In construing and giving effect to the limitation laws, courts must do so in such manner as to also give effect to this plain provision of the statute making all deeds void as against subsequent purchasers without notice until filed for record. Kennedy v. Northup, 15 Illinois, 148; Holbrook v. Dickenson, 56 Illinois, 497." That the title asserted by the remainder-men in that case was by deed, and not under a will, does not affect the principle upon which the decision rested.

So far as we are aware, the rule announced in Dugan v. Follett has not been disturbed or modified by any subsequent case. On the contrary, it was recognized in Safford v. Stubbs, 117 Illinois, 389, 394. The subsequent cases of Mettler v.

Opinion of the Court.

Miller, 129 Illinois, 630, 642, and Rohn v. Harris, 130 Illinois, 525, upon which the plaintiffs confidently rely, are not at all in conflict with Dugan v. Follett. In the first of those cases, Mettler v. Miller, the court affirmed the general rule announced in the previous cases, that "the possession of land by a tenant for life cannot be adverse to the remainder-man or reversioner; and if he conveys to a third person, by words purporting to pass the absolute property, the possession of the purchaser is not and cannot be, during the continuance of the life estate, adverse to the remainder-man or reversioner, so as to set the statute of limitations running against such remainder-man or reversioner; but after a life estate falls in, the possession will be adverse as to a remainder-man or reversioner." But it is evident from the whole opinion that this rule was applied strictly against the parties who sought to take shelter under the statute of limitations, because the title traced to them and under which they entered, and as it appeared of record, showed that they had notice of the rights of the remainder-men when they took possession. That the court regarded the state of the title, as shown by the public records, to be important in determining whether the rights of the remainder-man could be affected by the actual possession, during the life estate, of one claiming under a deed conveying the fee, is clear from its reference to the case of Safford v. Stubbs. It said: "Nor can Safford v. Stubbs et al. avail appellee. Neither Berkey nor Reiner, his immediate grantor, had notice that the interest of Weiser in the premises was merely that of a life tenant, and the records did not show it." So, in Rohn v. Harris, above cited, where the parties held possession under color of title, and paid all taxes for more than seven years, the defence, based upon the statute of limitations, was overruled upon the ground, in part, that the various deeds and wills under which the parties held "were upon the record, so that each purchaser had notice of the title under which he occupied the property." See, also, Dean v. Long, 122 Illinois, 447, 460.

At the trial below the plaintiffs introduced in evidence "a certified copy of the will of Romeo Lewis from the recorder's

Opinion of the Court.

office of Woodford County, Illinois." To the copy of the will so recorded were appended the affidavits of the subscribing witnesses, made in the court of common pleas of Butler County, Ohio, at its June term, 1843, proving the execution of the will, a certificate by the judge and ex officio clerk of the probate court of that county, under date of August 2, 1866, to the effect that the foregoing was "a true and correct copy of the last will and testament of Romeo Lewis, late of said county, aforesaid, and of the affidavit of the subscribing witness thereto, and of the order and proceedings of said court admitting the same to probate, the said copies of said will, affidavit, order and proceedings having been taken from the originals on file and record in said court." These copies were, on August 15, 1866, filed for record and recorded in one of the deed records in the office of the circuit court clerk and ex officio recorder for Woodford County, Illinois. But the copies, so filed and recorded, did not, in fact, include copies of the order and proceedings of the probate court in Ohio admitting the original will to probate. The defendants objected to the admission of the above paper as evidence, because it did not show any order of the Ohio court admitting the will to probate, and was not properly certified. The paper was admitted in evidence subject to objection.

Was the record thus made in Illinois, August 15, 1866, in respect to the will of Romeo Lewis, notice from that date. that Jane N. Lewis acquired, under the will of Romeo Lewis, a life estate only in his lands in that State? By the statutes of Illinois in force when that will took effect it was provided that "every will, testament or codicil, when thus proven to the satisfaction of the court of probate, shall be recorded by the judge thereof in a book to be provided by him for that purpose, and shall be good and available in law for the granting, conveying and assuring the lands, tenements and hereditaments, annuities, rents, goods and chattels therein, and thereby given, granted and bequeathed." The same statute contained this section: "Sec. 7. All wills, testaments and codicils, or authenticated copies thereof, proven according to the laws of any of the United States, or the territories thereof, or of any

Opinion of the Court.

country out of the limits of the United States, and touching or concerning estates within this State, accompanied with a certificate of the proper officer or officers that said will, testament, codicil or copy thereof was duly executed and proven, agreeably to the laws and usages of that State or country in which the same was executed, shall be recorded as aforesaid, and shall be good and available in law in like manner as wills made and executed in this State." Rev. Stat. Ill. 1833, pp. 612, 614, §§ 2 and 7. These provisions were retained in the acts of March 3, 1845, and March 20, 1872. Rev. Stat. 1845, c. 99, §.8, p. 538; Rev. Stat. 1874, c. 148, § 9. By the second section of the act of February 14, 1857, relating to conveyances, it was provided: "§ 33. All original wills, or copies thereof, duly certified according to law, or exemplifications from the record in pursuance of the law of Congress in relation to records in foreign states, may be recorded in the same office where deeds and other instruments concerning real estate may. be required to be recorded; and the same shall be notice from the date of filing the same for record as in other cases." Laws Ill. 1857, p. 39; Gross's Stat. Ill. 1868, p. 108, § 35. This section was slightly modified by the Conveyance Act of March 29, 1872, but not so as to affect the question before us. Rev. Stat. 1874, p. 279, c. 30, § 33; 1 Starr & Curtis's Ill. Ann. Stat. 597.

It is clear from these statutes that the will of Romeo Lewis, or an authenticated copy thereof, proven according to the laws of Ohio, if accompanied with a certificate of the proper officers that the will was duly executed and proven, agreeably to the laws and usages of that State, could, at any time after it took effect, have been recorded in Illinois, and thereby become good and available in that State in like manner as wills there made and executed; and that from at least the passage of the act of 1857 it would have become, after the filing of the same for record, and in respect to the real estate devised by it, notice. as in the cases of deeds conveying real estate. But it is equally clear that the copy of the testator's will filed and recorded in 1866, in the office of the recorder of Woodford County, was not authenticated or certified so as to entitle it to

« ForrigeFortsett »