delivered the opinion of the court:
In order to recover in the trial below, the plaintiff there, who is the appellant here, relied upon title, claimed to have been acquired under section 6 of the Limitation act by possession and payment of taxes for seven successive years under claim and color of title made in good faith. The decree in the partition suit, setting off the land here involved to John B. Stice, is relied upon as claim and color of title made in good faith. The court below refused a proposition submitted by the appellant, stating that “the decree in the partition suit in evidence in this case is color of title in John B. Stice.” This refusal on the part of the court was erroneous,.as the proposition announced a correct principle of law. We have held, that the judgment or decree of a proper court, making partition, purports on its face to convey title, and constitutes good color of title, even though a part of the tenants in common are not made parties to the s.uit, in which such judgment or decree is entered. (Hassett v. Ridgely, 49 Ill. 197; Rawson v. Fox, 65 id. 200). But in view of what is hereafter said in relation to possession and payment of taxes, we do not regard the error in refusing the above proposition as sufficient to authorize a reversal of the judgment. Color of title alone is not sufficient to establish a bar under section 6 of the Limitation act, but payment of taxes, possession and color of title must concur. (Clark v. Lyon, 45 Ill. 388).
In order to establish possession and payment of taxes for seven successive years under the decree of partition as color of title, the appellant relies upon the possession of the appellee, James L. Stice, and upon his payment of taxes, while he was guardian of his minor son, John B. Stice. It is said, that the possession and payment of taxes by James L. Stice were not his own possession and payment of taxes, but that he was so in possession and so made payment of taxes as the guardian of the minor, and, therefore, that his acts in this regard inured to the benefit of the minor, and created a bar in the latter’s behalf under section 6 of the Limitation act. If this be so, then, inasmuch as James L. Stice had a life estate in the premises, his possession and payment of taxes as guardian, if they were his acts as guardian, only operated, in conjunction with the claim and color of title, as a bar against himself, and cut off his own interest in the land as life tenant.
That James L. Stice had a life estate is not denied, nor can it be. His wife inherited an undivided one-third part of the lands from her father, John Brown, subject to the dower interest of her mother, the appellant. While she owned this undivided interest, she had a child, John B. Stice, born to her and her husband, James L. Stice, and thereafter, to-wit, on November 20,1873, she died, leaving John B. Stice her only child and heir-at-law. It thus appears, that she died before the act of 1874, abolishing the estate of curtesy, was passed. Hence, under the decisions of this court, James L. Stice, upon the death of his wife leaving issue, was a tenant by the curtesy consummate in the land inherited by her from her father. His interest was more than mere dower in his wife’s land; it was a life estate in'the whole of it. (McNeer v. McNeer, 142 Ill. 388; Jackson v. Jackson, 144 id. 274).
It is true, that James L. Stice was not made a party defendant to the partition proceeding. He was a necessary party, and, if he had been made defendant, his estate as life tenant would unquestionably have been decreed to attach to the part set off in partition to John B. Stice. (Spencer v. Wiley, 149 Ill. 56; Manly v. Pettee, 38 id. 128; Illinois Land and Loan Co. v. Bonner, 91 id. 114). But, even where there is a voluntary partition of land, if such voluntary partition is fair and impartial, a lien or encumbrance upon the undivided interest of one co-tenant will, as a general rule, be transferred to the portion of the premises set off to that co-tenant in severalty. (7 Am. & Eng. Ency. of Law, p. 67, and cases in notes). Although the present partition was not voluntary, but under a judicial proceeding, yet, as it was perfectly fair in the proportion of land set off to John B. Stice, and, as its fairness has been recognized by James L. Stice by taking" possession of such portion with his son and improving it and paying taxes upon it, it cannot be said, that he is entitled to claim a life estate in the undivided interest owned by his son before the partition. But, however this may be, it seems to be conceded by both parties to this suit, that the life estate of the appellee attached to the part so set off to his son in the partition suit. It results, that here is a case, where a life estate was owned by the father, and the remainder by the son, and both were living upon the premises during the years when the Statute of Limitations is claimed to have run. It is well settled, that it is the duty of the tenant for life to pay the taxes upon the premises, in which he has a life estate. (Warren v. Warren, 148 Ill. 641; Huston v. Tribbetts, 171 id. 547; Higgins v. Crosby, 40 id. 260; Enos v. Buckley, 94 id. 458). It is also well settled, that the tenant for life is entitled to the possession of the premises during the existence, of his estate therein. (Orthwein v. Thomas, 127 Ill. 554; Rohn v. Harris, 130 id. 525; Mettler v. Miller, 129 id. 630; Borders v. Hodges, 154 id. 498). The presumption, therefore, arises that, when the owner of the life estate is in possession of the property and pays the taxes thereon, his possession is held by virtue of his right thereto as tenant for life, and his payment of taxes is made in discharge of his duty to pay them, growing out of his interest in the property as tenant for life. Prima facie, the possession of the property and the payment of taxes thereon by the appellee were not for the purpose of creating a title in his son in bar of his own interest as tenant for life, and did not have such effect.
It appears, however, that in his accounts as guardian, presented to the county court, the appellee charged himself with certain rents, collected from the property, and credited himself with amounts paid out for taxes and improvements. It also appears, that, from 1884 when the appellee was appointed guardian of his son down to November, 1892, when he filed a petition for dower in said lands, he was laboring under a mistake, not knowing that he had a life estate in the whole of the premises, but supposing that he only had a dower interest therein. His error in this regard was not discovered until the introduction of evidence upon the hearing of his petition for dower. It is claimed oh the part of appellant, that appellee is estopped from denying full ownership of the property in John B. Stice by the statements, contained in the inventory and reports filed by him as guardian in the county court. The inventory speaks of the property here in question as a part of the estate of John B. Stice. This was literally true, because John B. Stice had a vested interest in the property as remainder-man, but there was nothing in the inventory inconsistent with the idea, that the ownership of the property by John B. Stice was subject to a life estate. So far as the reports as guardian are concerned, the appellee does not therein treat himself as the tenant of the land under his son, as landlord, but merely charges himself with certain quantities of corn and wheat and other products raised upon the land. Even if he is «thereby estopped from claiming, that he is entitled to recover back the amounts, with which he charged himself for such products, no estoppel arises as against his claim to the life interest which he owned in the property. If, however, the appellee can be held to have occupied the possession, as lessee of the premises under his son, by virtue of charging himself with the products raised from the land, his act in this regard would merely suspend his right, as life tenant, during the time of his occupation as such lessee. If one, having a life estate in lands, accepts a lease of the same premises for a term of years, it will have the effect of suspending his life estate for the term. (Heisen v. Heisen, 145 Ill. 658). The reports of appellee as guardian do not, however, show that he paid taxes, as guardian, for more than four years, to-wit, the years 1883, 1884, 1886 and 1887. The receipts produced are for the taxes of the years 1884, 1886, 1887 and 1891, being only four years, and not seven years. By the terms of these receipts the collector acknowledges the receipt of money to pay the taxes for these years from James L. Stice, and not from James L. Stice, guardian. In his testimony the appellee says, that he paid the taxes for the years from 1885 to 1893 inclusive “in the same way I paid those, receipts for which are in evidence.” It appears, therefore, that, so far as the face of the receipts shows, the taxes were paid by him individually, and not as guardian. So far, however, as the reports are concerned, there is nothing in them upon the subject of possession. The reports as guardian do not indicate in any way, that he was holding possession as guardian, and not in his own behalf. They cannot, therefore, be regarded as showing an estoppel upon the subject of possession. Without possession, payment of taxes under claim and color does not constitute the bar contemplated by the statute.
We are, however, of the opinion,- that there was no such estoppel here, as cuts off the appellee from claiming his interest in the property as tenant for life. If any estoppel exists, it is an estoppel in pais, or an equitable estoppel, but an estoppel of this kind is not available in an action of ejectment. (Wales v. Bogue, 31 Ill. 464; Blake v. Fash, 44 id. 302; Hayden v. McCloskey, 161 id. 351; Quick v. Nitschelm, 139 id. 251). Where there is an estoppel, a person is precluded from asserting a fact by previous conduct inconsistent therewith on his own part; and there is involved in such estoppel a representation, which is either false, or is made with knowledge of all the facts. (7 Am. & Eng. Ency. of Law, p. 14; Tillotson v. Mitchell, 111 Ill. 518; Gray v. Agnew, 95 id. 315; Noble v. Chrisman, 88 id. 186). A party in possession of land, even though he recognizes the title of another, may subsequently set up title in himself, if he shows that his recognition was based upon a misapprehension of his rights. (Jackson v. Spear, 7 Wend. 401). If one party makes representations, either in words or conduct, which induced the other party to proceed in a certain way, such representations cannot be regarded as constituting" an estoppel in pais, unless the party making them had full knowledge of all the facts, or had been guilty of gross negligence in failing to learn such facts. (Quick v. Nitschelm, 139 Ill. 251; Bringard v. Stellwagen, 41 Mich. 54). Bigelow, in his work on Estoppel, (p. 617, 5th ed.) says, that it will be fatal to an estoppel, which is claimed to exist, if “the representation was made in ignorance, under mistake; sometimes even though this mistake be one of law.” “The representation must be plain and certain, and ordinarily in reference to past and present facts; not matters of law or opinion.” (7 Am. & Eng. Ency. of Law, p. 14). Here, it cannot be said that, if the conduct of appellee, as divulgad by these reports, amounted to a representation of any kind, or an admission of any kind, such representation or admission was made by him with full knowledge of his rights; on the contrary, they were made under mistake, and under a misapprehension of what his rights were. They cannot, therefore, be allowed to operate to bis disadvantage. All statutes of limitation are based on the theory of laches. (Mettler v. Miller, 129 Ill. 630). It is an essential element of laches that the party charged with it should have knowledge. (12 Am. & Eng. Ency. of Law, p. 547).
The possession, contemplated by section 6 of the Limitation act, is an open, notorious, adverse, actual, visible and exclusive possession. (McMahill v. Torrence, 163 Ill. 277; Ball v. Palmer, 81 id. 370; Busch v. Huston, 75 id. 343; Turney v. Chamberlain, 15 id. 271). It is an essential element of a possession that is adverse and hostile, that it shall be inconsistent with a possession, or right of possession, by another. (1 Am. & Eng. Ency. of Law,— 2d ed.—p. 789). If a possession is merely permissive, and entirely consistent with the title of another, it can not silently bar that title. (Mettler v. Miller, supra). It is also well settled law that, as between those occupying parental and filial relations, the possession of one is presumed to be permissive, and not adverse to the other. (1 Am. & Eng. Ency. of Law,—2d ed.—p. 821, and cases cited). Here, a father, the guardian of his son, who owned a life estate in real property, and his son and ward who owned the remainder, are in possession together. The possession of the one is not inconsistent with that of the other. It cannot be said, that there is such a possession as can be called adverse. To prevent the running of the statute ag'ainst himself, it was necessary for the appellee to take possession of the property and pay the taxes. It cannot be said, that, because he was guardian of his son while he was so in possession and so paying taxes, he was creating an ownership in his son adverse to his own interest in the land.
The action of the court below in the giving and refusal of propositions of law, except as already indicated, was in harmony with the views herein expressed. We, therefore, see no reason for reversing this judgment. Accordingly, the judgment of the circuit court is affirmed.
Judgment affirmed.
Mr. Justice Boggs took no part in the decision of this case.