filed the following dissenting opinion:
I am unable to concur in the views of a majority of the court as to the good faith of Stuart.
It appears, from the record, that he was an attorney at law; that Bailey and Reynolds acquired title to the premises in controversy by redemption as judgment creditors of one Egan; that they, May 1, 1841, conveyed to Brower & "Wynkoop, assignees of the former, under a deed of assignment of their property for the benefit of their .creditors, the claim against Egan, by virtue of which said redemption was made, being a part of such property.
Brower & "Wynkoop, as such assignees, conveyed to the plaintiff August 13, 1860.
Of the three letters from Stuart, referred to in the opinion of the court, as disclosing his relation to said parties, the first one, to Bailey & Reynolds, of March 9, 1841, purports to send enclosed $150, which, with previous remittances, made $650 collected on account of claims in the writer’s hands, and also the sheriff’s deed of the lands, and a list of expenses in regard to it, and the letter gives information respecting sundry other claims.
The second letter, of April 4, 1842, is also to Bailey & Reynolds, which encloses the abstract of title to the Egan lands, and says: “By the abstract of title, which is correct as the books of record will furnish, you will perceive that Dr. Egan did not have,'at the time of sale, a full and perfect title to all the lands included in your deed. I have, therefore, in consultation with others, thought it best not to pay the taxes now, but suffer them to be advertised and then bid them in, and obtain a tax title, which will assure the title in you. The sale will not probably take place till some time next fall. If this course, under the circumstances • of the case, meets your approbation, you will please, at your convenience, so inform me. ”
The third letter, of date November 25, 1843, is addressed to E. S. Wynkoop.- It purports to send a statement as to the “ situation and prospect of the Egan lands purchased by B. & R. ” in answer to a letter of inquiry by Wynkoop, and advises him of the compromise of one demand, the collection of another, and that there is due on a certain other one, $400; it shows the lands' were bid off for taxes November 14, 1842, and says: “ You will recollect that these lands embraced in the sheriff’s deed were allowed to be advertised for taxes, that they might be bid in for Bailey & Reynolds, and a tax title obtained and added to the former title, which Avas imperfect. The statement shoAvs what lands were bid in, and Avhat Avere not advertised because the taxes were paid by rival claimants. The object is to obtain a tax title to all the tracts, as they are advertised and sold. Two years are allowed for redemption. You will also perceive that the taxes for the years 1842 and 1843 have been paid on all the tracts by me, that have not been paid by other claimants or persons through mistake. The title to the lands is, therefore, in the process of completion as fast as circumstances will permit, the taxes being attended to. The lands are generally valuable, and worthy of attention. When the time of redemption has expired, and the title perfected as far as it can be, the result will be communicated. Any further information wanted on the subject I shall be happy to give.”
Nothing further ever occurred between these parties, so far as the record shows.
Wynkoop’s statement, referred to in the opinion, is, that Stuart was their agent for said lands a long time, and continued such till 1844.
On the trial it was testified that Stuart resided in the State of New York. At what time he removed from Chicago there, does not appear, further than that the witness had been his attorney for twenty years, and a power of attorney in evidence from Stuart to sell all his lands in Will county, Illinois, of date November 2, 1850, describes him as of the State of New York.
This is all the direct evidence bearing upon Stuart’s relation to the parties, or his being divested of it.
The decision of the court rests the validity of the defense upon a bar to the action acquired by Stuart under section 9 of the conveyance act, which is as follows: “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.”
Stuart’s payment of taxes must have been under color of title held adversely to the rightful owner; but, under the state of facts in the case, as I conceive, the law adjudges that Stuart did not hold title adversely to Brower & AVynkoop. He was a trustee, and they the destuis que trust.
The payment of taxes must have been under color of title, “made in good faith.”
Holding the relation Stuart did, the law, I consider, imputes to him bad faith, in making any claim of title for himself.-
Presumptions, instead of being. in his favor, should be against him.
In my view of the law, this statute of limitations never ran for one moment of time in favor of Stuart against Brower & AVynkoop, or this plaintiff, their grantee.