Snow, L. D.

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Chicago-Kent College of Law

Chicago-Kent Law Review Volume 37 Issue 1 Article 3 April 1960 Adverse Possession - Void, Irregular or Defective Deeds or Grants - Whether a Forged Deed Imparts Color of Title within the Meaning of the Statute Providing for the Acquistion of Title to Lands on Payment of Taxes for Seven Years L. D. Snow Follow this and additional works at: https://scholarship.kentlaw.iit.edu/cklawreview  Part of the Law Commons Recommended Citation L. D. Snow, Adverse Possession - Void, Irregular or Defective Deeds or Grants - Whether a Forged Deed Imparts Color of Title within the Meaning of the Statute Providing for the Acquistion of Title to Lands on Payment of Taxes for Seven Years, 37 Chi.-Kent L. Rev. 53 (1960). Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol37/iss1/3 This Notes is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion in Chicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contact jwenger@kentlaw.iit.edu, ebarney@kentlaw.iit.edu. CHICAGO-KENT LAW REVIEWPUBImSHED APRIL AND OCTOBER BY THE STUDENTS OFCHoAGo-KENT COLLGss OF LAw, 10 N. FRANKLrN ST., CHICAGO, ILLINOISSubscription price, $3.00 per year Single copies, $2.00 Foreign subscription, $3.50M. F. HAUSELMANEDITORIAL BOARDEditor-in-ChiefD. G. MOUNTCASTLEManaging EditorR. 0. YOUNGAssociate EditorsMiss M. L. McCRAYBook Review EditorT. K. PETERSONCase EditorsE. E. DECHTERD. J. A. HAYESG. C. HELDRICHS. L. JACKSONH. B. MADSENL. D. SNOWN. MERMALLR. H. STEVENSOND. W. VALENTINEW. D. WALLACEP. A. WEISSBOARD OF MANAGERSW. H. HOWElY, Chairman and Faculty AdviserKATHERINE D. AGAn JAMES R. HEMINGWAY JAMS K. MARTsALL WM. F. ZACHA IA5The College assumes no responsibility for any statementappearing in the columns of the ReviewVOLUME 37 APRIL, 1960 NUMBER 1DISCUSSION OF RECENT DECISIONSADVERSE POSSESSION-VOID, IRREGULAR OR DEFECTIVE DEEs ORGRANTS-WHETHER A FORGED DEED IMPARTS COLOR OF TITLE WITHINTHE MEANING OF THE STATUTE PROVIDING FOR THE AcQUISITION OF TITLETO LANDS ON PAYMENT OF TAXES FOR SEVEN YEARs-Significant illumina-tion has been shed upon the meaning of the term "color of title" as usedin the statute providing for the acquisition of title to lands on paymentCHICAGO-KENT LAW REVIEWof taxes for seven years' by the recent decision in Bergesen v. Clauss.2The circumstances were simple and straightforward; the plaintiff hadacquired title to a parcel of real estate and had never reconveyed; thedefendant had purchased and had recorded a deed to the same parcel, hadtaken possession, and had paid the taxes for seventeen successive years.In the action, the plaintiff sought to have defendant's deed declared to bea forgery and the cloud removed from his title. The fact of the forgerywas not denied; nor was the good faith of the defendant. The trial courtsustained the defendant's motion for summary judgment and, on directappeal, the Supreme Court of Illinois, faced with this situation for thefirst time, affirmed. The court's ultimate conclusion was that a forgeddeed taken in good faith resulted in sufficient color of title to comewithin the meaning of the statute.While the decision in this case certainly probes the outer reachesof the concept of color of title, it nonetheless rests on a firm foundation ofprior decisions and fits neatly and quite logically there. Some difficultywas experienced in getting the structure started when the Supreme Courtof Illinois, treating with the statute4 for the first time in the case ofIrving v. Brownell,5 held that an auditor's deed issued pursuant to a taxsale was inadmissible without proof that the prerequisites of the lawauthorizing a sale for taxes had been met and that the color of titlerequired was prima facie title. The difficulty was soon remedied whena similar situation was presented in the case of Woodward v. Blanchard,6wherein the court overruled the holding in the Irving case in this respectand held that a deed was effective to impart color of title regardless of itsintrinsic worth or the constitutionality of the enabling legislation underwhich it was issued. Construction thereafter proceeded in an orderlyfashion.In the early case of McCagg v. Heacock,7 the court fashioned theyardstick by which it has consistently measured color of title ever since.1 Ill. Rev. Stat. 1959, Vol. 2, Oh. 83, § 6, provides, in essence, that one in actualpossession of land under claim and color of title, made in good faith, who pays thetaxes for seven years, shall become the owner thereof according to the purport ofhis paper title.215 Ill. (2d) 337, 155 N. E. (2d) 20 (1959).3 A direct appeal was proper since a freehold was involved: Ill. Rev. Stat. 1959,Vol. 2, Ch. 110, § 75(1) (a).4 The case was actually decided under Ill. Rev. Stat. 1845, Ch. 24, § 8. It con-tained substantially the same wording as the present statute.5 11 fll. 402 (1849).6 16 Ill. 424 (1855).7 34 Ill. 476 (1864). On rehearing, the court specifically affirmed its conclusions,with the one modification mentioned in note 19, post, but reversed and remanded ona pleading technicality, with leave to amend. See the later opinion in McCagg v.Heacock, 42 Ill. 153 (1866).DISCUSSION OF RECENT DECISIONSThe defendant in that case claimed, through mesne conveyances, under agrantor whose title was subject to a judgment lien under which the prop-erty had been sold to the plaintiff's grantor. The defendant had been inpossession under his deed for over seven years and, reserving the questionof color of title, had qualified under the statute. The court held that thedefendant had acquired color of title, notwithstanding want of actual title,and went on to state that any instrument indicating an intention to passtitle, containing a description of the premises and naming a grantor anda grantee, would impart color of title irrespective of the fact that thenamed grantor had no title to pass.By this measure, the Supreme Court of Illinois has held that thegood or bad faith of the grantor is irrelevant8 and that any deed regularon its face9 will impart color of title, including deeds not under seal,'0 asheriff's deed pursuant to a void sale," and deeds issued under void fore-closures1 2 or other void or erroneous decrees.'3  In the case of Branch v.Lee,' 4 for example, the grantee in a master's deed, issued pursuant to adecree of partition, sought to invoke the operation of the statute as adefense to the prayer for the removal of his claim as a cloud on the title.The partition decree was attacked for want of jurisdiction. The courtheld that even though the deed was void it was still sufficient to impartcolor of title and the fact that the deed failed to pass actual title wasnot material. The court has also held that a deed by a minor was sufficientcolor of title,'5 as were deeds by tenants in common purporting to conveythe entire title,16 or those given by mere volunteers.17The statement that color of title is any sort of title that a reasonableman would pay money for, and pay yearly taxes on,'8 aptly describesand prescribes the requirements. It also suggests that the real criterion8 Hardin v. Gouveneur, 69 Ill. 140 (1873).9 Belanski v. Oakes, 6 Ill. (2d) 176, 128 N. E. (2d) 689 (1955); Yoakum v. Harri-son, 85 Ill. 202 (1877) ; Webster v. Webster, 55 Ill. 325 (1870) ; Brooks v. Bruyn,35 Ill. 392 (1864) ; Dickenson v. Breeden, 30 Ill. 279 (1863) ; Holloway v. Clark, 27Ill. 483 (1861) ; Daily v. Doolittle, 24 Ill. 578 (1860).10 Sanitary District of Chicago v. Allen, 178 Ill. 330, 53 N. E. 109 (1899) ; Krusev. Wilson, 79 Ill. 233 (1875) ; Watts v. Parker, 27 Ill. 224 (1862).11 Fritz v. Joiner, 54 Ill. 101 (1870).12 Foote v. City of Chicago, 368 Ill. 307, 13 N. E. (2d) 965 (1938) ; Hinckley v.Greene, 52 Ill. 223 (1869).18 Dalton v. Erb, 53 Ill. 289 (1870) ; Hasset v. Ridgley, 49 Ill. 197 (1868) ; Huls v.Buntin, 47 Ill. 396 (1868).14 373 Ill. 333, 26 N. E. (2d) 88 (1940).15 Cole v. Pennoyer, 14 Ill. 158 (1852).16 Hinchman v. Whetstone, 23 Ill. 185 (1859) ; Goewey v. Urig, 18 Ill. 238 (1852).17 Maring v. Meeker, 263 Ill. 136, 105 N. E. 31 (1914) ; Lake Shore & M. S. Ry. Co.v. Pittsburgh, Ft. W. & C. Ry. Co., 71 Ill. 38 (1873).18 Dlckenson v. Breeden, 30 Ill. 279 (1863).CHICAGO-KENT LAW REVIEWis willingness to pay, and that the conveyance is a mechanical element ofthe manifestation of that willingness. The Supreme Court of Illinois hassaid that there is a presumption that taxes are paid by the owner of realestate and that such presumption, enduring for seven years, becomes con-clusive as a protection to the party so in possession and in order to pro-mote the interest of the public and the peace and quiet of the community. 19In other words, the overriding consideration is that one believes himself tobe the owner of real estate, which belief is to be tested by a regular formof conveyance together with a maintenance of the status of ownership or,more simply, by good faith measured within a defined area.The present case, in presenting the apparent anomaly of a forgeddeed, itself no more than absolute nullity, buttresses the suggestion thatcolor of title rests on an entirely different conceptual basis than one de-manding respect for the validity of the underlying conveyance. Applyingthe premise that the operation of the statute is based on good faith con-ditioned by acquisition in apparently regular form plus assumption of therole of ownership, the anomaly of the forged deed imparting color of titlecan be reconciled. If this application is accepted, the plaintiff's argument,relentlessly directed to the want of a valid deed, is defeated. The defendantacquired what he believed to be title by a regular form of conveyance.The plaintiff conceded that the defendant believed himself to be the owner.The latter's assumption of the responsibility of ownership by paying thetaxes for seventeen years, ten more than required for this purpose, com-pleted the requirements for activation of the statute.That the application of the premise thus derived is desirable is indi-cated by at least three considerations. In the first place, it is entirelyconsonant with established concepts of justice that an innocent purchaserfor value be protected. This is precisely the effect of the application. Noris this protection violative of the sanctity of real estate titles since itonly attaches after seven years of prescribed conduct, allowing ample timefor the true owner to assert and sustain his position. Secondly, it is inthe interest of the community that title to real estate therein be made cer-tain both in order that members thereof be protected in dealings with theapparent owner and that the responsibilities of ownership as they relateto the community itself be discharged. Lastly, the interests of the stateare advanced by the removal of any impediment to, and the encourage-ment of, continued payment of taxes.L. D. SNOW19 McCagg v. Heacock, 42 Ill. 153 (1866). The matter arose on rehearing of theholding in 34 Il1. 476 (1864), wherein the court modified its statement in the originalappeal that the statute operated to vest title in one so qualifying and held that itwas, in reality, a statute of limitation. The court also observed that as long as theparty intended to be benefited thereby maintain possession it amounted to the samething as a statute designed to vest title.

Adverse Possession - Void, Irregular or Defective Deeds or Grants - Whether a Forged Deed Imparts Color of Title within the Meaning of the Statute Providing for the Acquistion of Title to Lands on Payment of Taxes for Seven Years

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Adverse Possession - Void, Irregular or Defective Deeds or Grants - Whether a Forged Deed Imparts Color of Title within the Meaning of the Statute Providing for the Acquistion of Title to Lands on Payment of Taxes for Seven Years

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