This was an action of trespass quare clausum fregit, commenced by plaintiff against defendant in the Clinton Circuit Court. To the declaration filed in the case, the defendant plead the general issue; liberum tenementum in James Russell, under whom defendant justified as his servant; that Russell had claim and color of title made in good faith, and payment of taxes, and actual possession thereof for seven successive -years prior to the commencement of this suit, and therefore the trespasses were justified; that Russell also had claim and color of title made in good faith, having a deed deducible of record, etc., for the land, the same being vacant and unoccupied for seven successive years, and that he had paid all taxes legally assessed thereon, and justified the trespasses. To each of these pleas there was a replication, and on them issues were formed to the country. The cause was tried by the court without the intervention of a jury, by consent. On the trial, the plaintiff proved that defendant took and carried away from the land, seven pieces of lumber, the property of plaintiff, which were worth $3.50, and that plaintiff, in February, 1858, built a frame house on the land. The plaintiff also deduced, by regular connected chain from the United States government, the title in the land to himself.
The defendant proved that the wife of James Russell had a small building of some kind erected upon the land, about two weeks before the house of plaintiff was built; that Russell was absent at the time, and that defendant was commanded by the wife of Russell to take the lumber. Defendant read in evidence a tax deed on a sale in 1846, for the taxes of 1845, to James Russell, for the premises, and receipts for the taxes on the same, for the years 1849 to 1856 inclusive. The plaintiff then offered to read receipts for taxes on the land for the years 1856 and 1857, paid by A. J. Gillespie and J. Sparks, the persons of whom he derived title, which the court rejected. The court upon this evidence, found for, and rendered a judgment in favor of the defendant.
It was not contended, nor could it be, that the tax deed read in evidence by defendant, was paramount title. To have made it such, there must have been a compliance with the essential requirements of the revenue laws, authorizing sales for taxes. In this case, the deed on its face shows that the judgment under which this sale was made, was rendered at the Spring term, 1846, of the Clinton Circuit Court, and that the sale of this land was made on the 29th day of September, 1846, under a precept issued on the day previous. The 47th section of the revenue law of 1845, p. 13, requires the notice to be given for, and the sale to be made, on the fourth Tuesday next succeeding the day, fixed by law, for the commencement of the term of the Circuit Court, at which he shall apply for a judgment. The 46th section of the same act, requires the collector to apply at the first term of the Circuit Court in each year, for judgment against the delinquent list of lands for the taxes unpaid thereon. The law then in force, required the first term of the Clinton Circuit Court to be held on the first Monday of April in each year. This sale, then, was not on the fourth Tuesday next succeeding the day fixed for the commencement of the first term of the Clinton Circuit Court, but on a day several months after that time. And sales for taxes on a day different from that fixed by law, have been repeatedly held by this court to be void. Hope v. Sawyer, 14 Ill. R. 254; Polk v. Hill, 15 Ill. R. 131. If this sale was void, it could not be set up as outstanding paramount title to defeat plaintiff’s recovery by a justification under it, even if a license had been shown.
But even if it were conceded that this tax title was all that is contended, and that it was color of title under the second section of the limitation law of 1839, and all taxes legally assessed upon the land had been paid under it for seven successive years, still the record fails to show that Russell had the possession of the premises. The evidence shows that his wife had caused a small building of some kind to be erected on the premises, but it wholly fails to show that she had any authority for so doing. The evidence fails to show that he had appointed her his agent to take possession of this land, or for any other purpose. The law does not constitute the wife the agent of the husband, and in the absence of all proof, it cannot be inferred that she was authorized to take possession of these premises. The record also fails to show any authority in the wife, to give defendant power to remove and convert this property of plaintiff to Russell’s or defendant’s use. The defendant has therefore failed to show a justification for the acts complained of, and the court below erred in rendering judgment in his favor, and it should therefore be reversed, and the cause remanded.
Judgment reversed.