Breeden brought his action of ejectment against Dickenson to recover possession of the north-west quarter of Section twenty-six, in Township five north, Range eight west, in Hancock county. The issue was tried by the court without a jury, and a verdict and judgment for the plaintiff, from which the defendant appeals to this court.
Both parties claim title from the same source, the plaintiff by deed from the original patentee, the defendant by deed executed by his heirs-at-law, and he also claims color of title made in good faith, and payment of taxes for seven successive years thereunder, as a bar to the plaintiff’s right to recover the possession. The land was vacant and unoccupied until the month of June, 1854, at which time the defendant entered into possession, and was in possession on the seventh of March, 1S59, the day of the commencement of this suit.
The principal questions presented by the record, are, did the defendant have notice of the conveyance from the patentee, at the time or before he took a conveyance from the heirs-at-law ? and was the color of title acquired in good faith, and the payment of taxes regularly made, in connection with and under such title, for seven successive years, whilst the land was vacant and unoccupied ?
Objections were made on the trial, to the deed offered in evidence by the plaintiff’ from James I. Dozier to E. L. Con ant, on account, as is alleged, of the imperfect description of the land. In the deed, it is described as “ a certain tract or parcel of land, situate, lying and being in the county of Hancock, in the State of Illinois, containing one hundred and sixty acres, be the same more or less, being north-west 26, north 5, west 8, of the bounty lands, and being the same quarter section patented by the United States to Edward Grow, a soldier in the late war, who deeded the same to the said Dozier.” Having to take judicial notice of the acts of Congress, by which the system for the survey of the public lands in this State was organized and established, and of the dedication of a large portion of them for bounties to f-ose who served in the army of the United States in the war of 1812 ; and having to take judicial notice of the subdivision of the State into counties, we can be at no loss in fixing the precise location of the tract in question, by the descriptive words used in this deed. There is no ambiguity or defect in the description, and no other tract of land in this State could suit this description,—it being “ bounty land ” in Hancock county, but a tract in Township 5 north, Range 8 west of the fourth principal meridian. But if there was an ambiguity of description, it could be explained by proof, and for that purpose resort might be had to the patent to Crow, and to the deeds from him and his grantee. Dougherty v. Purdy, 18 Ill. 208; Worden et al. v. Williams, 24 Ill. 74.
Objections were also made to the reading of E. L. Conant’s deposition, taken by the plaintiff. No specific objection appears to have been made to this deposition, but only to its legal effect.
One object of this testimony was to prove notice to the defendant of plaintiff’s title, by conveyance from the patentee of the land, or to show that defendant was in a position to put him on inquiry, as to where, and in whom the title really was. The defendant was co-purchaser with Bartlett, from the heirs of Crow, the patentee, and would be affected by such notice as Bartlett might have received ; hence its propriety, as tending to prove notice to him. The letters about which this witness speaks, were his own letters, and not presumed to be in the possession-or under the control of the plaintiff, and they were alluded to more for the purpose of fixing the time when notice was obtained, than for any other purpose. Their contents were not sought after, nor were they the groundwork of any portion of the title. It was the simple fact, when was an application made to witness, by Bartlett, to purchase his right to this land. The affidavit of the plaintiff to get at the contents of the letters, was sufficient for that purpose. They were not under his control, nor was the party holding them within the reach of the process of the court. But we deem all this quite immaterial, for it is apparent from other testimony in the cause, that the witness was mistaken about the date of the letters. The letter produced in the record shows the time to have been June 2, instead of April or May, so that Conant’s testimony, on this point, amounts to nothing. He was clearly mistaken in fixing the date as in April or May. And it is quite apparent, from the letter itself, that it was the first written by Bartlett to the witness Conant. The whole tenor of the letter shows this, unless it was artfully written for a purpose.
Now, as to the important question in the case. Did defendant have notice of the conveyance of Crow, the patentee, before he purchased the land of the heirs-at-law %
That purchase was made, and the deed executed, May 13, 1854. The deed from Dozier to Conant, was executed October 8,1835, and recorded in the proper county, September 10, 1836. That record describes the land as, “the same quarter section patented by the United States to Edward Crow, a soldier in the late' war, who deeded the same to the said Dozier.”
Was not this sufficient to put a party, honestly seeking to discern the state of the title, upon inquiry ? Though no deed appeared of record from Crow to Dozier, still, the fact of one having been executed, is recited in the recorded deed. That it did put Bartlett on inquiry, is abundantly shown. About the 13th of May, 1854, the date of the deed from Crow’s heirs to Bartlett and the defendant, Bartlett is at Louisville, Kentucky, and had an interview with Mr. Dozier, who told him all about the title, and how he derived it by deed from Benjamin Hughes, who had a conveyance from Crow, the patentee. Bartlett disputed this title on the strength of some information he pretended to have obtained, of the insanity of Crow at the date of his deed to Hughes, and said to Dozier that he and a Mr. Rankin, and perhaps some other man, were about to buy it of Crow’s heirs, through one Johnson, the agent of those heirs, and that he had paid him one hundred dollars on the contract.
On that day, May 13, 1854, after all this information received from Dozier, and after the deed from him to Conant had been on record in the proper county eighteen years; containing in its recitals, substantially the same information, Bartlett took a deed from the heirs of Crow, to himself and the defendant in this action, and transferring his interest to his co-purchaser, that party, the defendant here, undertakes to say that he had no notice of the prior deed from Crow, when he took the deed from his heirs. They lived, it seems, in the same county in which Mr. Dozier resided, and it is a ■ fair inference, that the deed was obtained from the heirs, after this instructive interview with him. If it was obtained before that interview, it can add no strength to the defendant’s position, for Dozier told him but little more than the records spoke. Here, then, was actual notice that the title was out of Crow; and the deed from him to Hughes, and from Hughes to Dozier, though last on record, must take precedence of the deed from Crow’s heirs, though first on record. The deed from Dozier to Conant had been on record eighteen years or more, and of which fact Bartlett was folly cognizant when he took the deed from the heirs of Crow.
Now, as1 to the other branch of the case. Did the defendant show color of title, made in good faith, and payment of taxes concurring therewith, for seven successive years, while the land was vacant and unoccupied, so that the bar of the statute can be interposed ? Section 9, Act of 1839, Scates’ Comp.
What is color of title made in good faith under that section? For an answer to this question we have only to look to the decisions of this court. In Woodward v. Blanchard, 16 Ill. 430, it was said that color of title was a question of law, and good faith a question of fact, and that color .of title must be a paper title, and whether originating in a wrong or a right, made no difference. There must be some written evidence of title, under the statute, and as the court say, “ an act or motion of the mind,”—it must be acquired honestly—it must be such a title, as a reasonably intelligent man would have confidence in. Acquiring such a title would be color of title made in good faith.
In Irving v. Brownell, 15 Ill. 412, this court said, “ by the words ‘ claim and color of title made in good faith,’ we must understand such a title as, tested by itself, would appear to be good—that is, a prima facie title.” We understand by this, that any sort of title a reasonable man would pay money for, and pay the yearly taxes assessed upon it, for a series of years, is color of title made in good faith.
In more recent cases, this subject has been discussed by this court, and in Dunlap v. Daugherty, 20 Ill. 404, we said, that an executory contract for a conveyance was not color of title. In Bride v. Watt, 23 Ill. 507, we held, that a certificate of purchase at a tax sale, was not color—that such certificate does not purport to pass any title, either in fee or any other estate. An instrument of writing, to be effectual as color, must purport on its face to convey title. It must, apparently, transfer title to the holder. Not that the title, when traced back to its source, should prove to be an apparently legal and valid title, but the instrument under which the claimant holds, and upon which he relies, must itself profess to convey a title to the grantor.
In. Holloway et al. v. Clark, 27 Ill. 484, it was held, that the clerk’s or sheriff’s deed for laud sold for taxes, was color of title, and so of a quit claim deed, for they, each of them, purported to convey the title, and it was not necessary, if the deed was regular on its face, to show that the requirements of the statute had been observed in making the sale.
The substahce of these decisions is, that any deed purporting on its face to convey title, no matter on what it may be founded, is color of title. So this court said, in the case of Parker v. Watts, 27 Ill. 224, that a party claiming color of title might avail, in designing his title, of a deed wanting a seal. See also, Dawley v. Van Court, 21 Ill. 460. The object of the ninth section evidently is, to render effective, under certain circumstances, invalid titles,for as to valid titles, this section would be of little practical use. The current of the decisions of this court is, that color of title made in good faith, is shown by any deed or instrument in writing which purports on its face to convey title, which a party is willing to, and does, pay his money for, apart from any fraud, and pays all the public taxes assessed upon the land so conveyed. The deed itself purports good faith, unless facts and circumstances attending its execution, show that the party accepting the deed had no faith or confidence in it. McConnell v. Street, 17 Ill. 254; Morrison v. Kelly, 22 Ill. 626. Testing this title from S. B. Munn, through several different purchasers, all of whom are presumed to be intelligent men, and the payment of all taxes assessed upon it for several consecutive years, and there being no proof of fraud, or want of good faith, we think the defendant showed color of title made in good faith to this tract of land. The rule in relation to notice of a title in another party, or notice sufficient to put a purchaser upon inquiry, has no application to a claim of this kind, arising under this statute of limitations. Woodward v. Blanchard, 16 Ill. 433; Clapp v. Bronaghan, 9 Cowen, 558.
What papers did defendant exhibit, on this branch of the case ? Seven separate and distinct title papers, all formal, originating in a deed from Stephen B. Munn to Moulton and Nevins, dated as far back as December 7, 1835. What may be the recitals in this deed, we are not informed, but it is easy to conceive it may contain sufficient to satisfy reasonably intelligent and cautious men, that it had some foundation on which to rest. It might recite the fact, that he had purchased the land at a sale for taxes, or some other fact sufficient to inspire some confidence in his act of granting it away. In addition, it is shown, that those who hold this color of title from Munn, paid the taxes assessed upon the land, while it was vacant and unoccupied, for a series of years, and after it was occupied, for four years or more. In the absence of all proof to the contrary, it is vain to say, here was not color of title made in good faith.
The next and only remaining question is, did payment of taxes for seven successive years, concur with this color ? Did the payment begin with the acquisition of the color of title, and go on with it, for seven successive years, whilst the land was vacant and unoccupied % This is matter of computation. The first payment of taxes, under color of title, was made on the 4th of February, 1848, for the taxes of 1846 and 1847. In June, 1854, the appellant took possession of the land. The last payment, whilst the land was vacant, was made on the 24th of April, 1854, for the taxes of 1853, a little over six years after the first payment of taxes, so that payment of taxes for seven successive years has not concurred with the color of title, whilst the land was vacant and unoccupied. The payment of the taxes, after possession taken, cannot enter into the account, and thus blend section eight with section nine, of the act. The case must stand wholly on the ninth section, and under that, the appellant did not establish the bar. What was said on this "point in Dawley v. Van Court, supra, is to be considered as dictum merely, and not in the case. On mature reflection, we are satisfied, that to make out the seven years payment of taxes, the two sections cannot be blended, or one lapped on the other.
The judgment is affirmed. Judgment affirmed.