The opinion
Mr. Justice Bailey, dissenting:
I am unable to concur with the majority of the court either as to the facts or the law of this case. Hampton, the complainant, filed his bill, claiming to be the owner in fee and in possession of lots 36 and 37, in block 1, etc., in the city of Chicago, and praying to have three several tax deeds removed as clouds upon his title. Henry H. Gage, the defendant, in his answer and cross-bill, claims the paramount title under and by virtue of one of said tax deeds, and the payment of taxes thereunder for seven consecutive years while the lots were vacant and unoccupied and an entry into said lots after the expiration of the seven years limitation. The main question of fact relates to the payment of the taxes for the years 1880 and 1881.
Of the three tax deeds, the one under which the defendant now claims title, was executed to the defendant February 10, 1877. Subsequent to the date of this deed, viz., September 23, 1878, both lots were sold for the taxes of 1873 and 1874, and October 18, 1878, lot 36 was sold for the taxes of 1877, the purchase at both sales being made in the name of Asahel Gage, and the certificates of sale being issued to him. In pursuance of these two sales tax deeds were executed to Asahel Gage, dated respectively February 15 and 18,1881. September 15, 1882, Asahel Gage quitclaimed his interest in said lots to the defendant.
The defendant offered in evidence a contract under seal between himself and Asahel Gage, bearing date December 6, 1880, in which, after reciting that they were then and had been theretofore engaged in the business of 'purchasing property at tax sales in Cook county, Illinois, and that their business relations were such that it was proper and necessary that written articles of agreement should be entered into between them, it was provided, among other things, in substance, that Asahel Gage authorized and directed Henry H. Gage to use his, said Asahel’s, name at tax sales, for the purchase of property, both for said Asahel and said Henry H., and to use his name for the purpose of serving tax sale notices, and to take out tax deeds in his name, upon certificates issued to him and belonging to either party. And said Asahel agreed, upon reasonable request, to quitclaim to said Henry H. such pieces of property as might belong to him, and to assign to said Henry H. all such certificates of sale as he might be interested in, whenever requested so to do. Said Asahel also ratified and confirmed anything theretofore done or which might thereafter he done by said Henry H. in accordance with the intent and spirit of said agreement, and it was provided that said agreement should extend to and embrace all matters in the past and in the future within its spirit and intent.
The defendant proved the payment of taxes by himself on the lots in question for the years 1882, 1883, 1884, 1885 and 1886. To prove the payment of the taxes for the year 1880, he introduced in evidence a tax receipt which read, “Received of Asahel Gage by Henry H. Gage” the taxes of 1880, and to prove the payment of the taxes of 1881, he introduced in evidence a tax receipt which read, “Received of A. Gage” the taxes of 1881. There can be no doubt that these receipts, unexplained, prove payment of taxes for and on account of Asahel Gage and this is so irrespective of who actually made the payment or whose money was used in making it; and being -made on account of Asahel Gage, it will be presumed, in the absence of proof to the contrary, to have been made under and in support of the title standing in his name.
No question is made hut that tax receipts are susceptible of explanation by parol proof, and that the presumptions arising therefrom are susceptible of being thus rebutted, but the proof by which such explanation is made should be clear and convincing. In Winchester v. Grosvenor, 44 Ill. 425 , where there was a question of explaining by parol a receipt for money executed by one party to the other, this court said: “That a receipt may he explained by parol is conceded, hut the proof by which it is done must be clear and unmistakable. A written receipt is evidence of the highest and most satisfactory character, and to do away with its force, the testimony should he convincing, and not resting in mere impressions, and the burden of proof rests on the party attempting the explanation.” See also Rosenmueller v. Lampe, 89 Ill. 212 .
In the present case the facts established or attempted to be established by the evidence given in explanation of the receipts ■ are, that Asahel Gage did not pay the taxes; that Henry H. Gage did pay them, and that he paid them with his own money. Neither of the witnesses attempts to state that the payments were not made on account of and for Asahel Gage, and under and in support of the tax titles standing in his name. These, the material presumptions arising from the receipts, are in no way rebutted.. Asahel Gage, as it seems, was a resident of the State of New Jersey, and had employed Henry H. Gage to transact all business arising out of his purchases of property at tax sales, and the fact that Asahel Gage did not pay the taxes, and that Henry H. Gage did pay them, and that he paid them with his own money, are not inconsistent with the presumption arising from the receipts that he made such payments under the Asahel Gage tax titles. If the fact had been otherwise it would have been easy for Henry H. Gage when on the stand as a witness in his own behalf to so state, but his absolute silence on that subject furnishes additional ground to conclude that the receipts record the precise truth in relation to the transaction.
To establish a title by limitation, a party must not only show the payment of taxes for seven consecutive years under claim and color of title, but he must show that all such payments were made under color of the same title, and a payment of taxes in fact made in support of and under color of one title, can not be availed of as a payment under another and adverse claim of title. As said by this court in Cofield v. Furry, 19 Ill. 183 : “The true question in such case is, under what title were the taxes paid? If they were paid under no claim and color, or under title adverse to that to which they are sought to be applied, the payment is unavailing.” This doctrine was repeated and approved in Hardin v. Gouveneur, 69 Ill. 140 . In that ease it is held that while tax receipts may be explained or payment proved by parol, the evidence must be clear not only that the payments have been made, but that they were made under claim and color of the title interposed as a bar to the recovery.
The proof in this case furnished by the tax receipts being that the payments of taxes for the years 1880 and 1881 were made under the Asa,hel Gage title, a title wholly adverse to that under which the defendant now claims, and there being no proof to the contrary, the defendant has, in my opinion, wholly failed to make out the payment of taxes for seven consecutive years under claim and color of title, and his defense has therefore failed.
I am also of the opinion that, at the time of filing his bill, the complainant was in lawful possession of the lots in question, and that his possession was sufficient to authorize him to file his bill to remove the tax deeds as clouds upon his title. Admitting that the defendant took possession of and fenced said lots in August, 1887, as he claims, it appears without contradiction, that in the following December, and prior to filing his bill, the complainant went to said lots and found them but partly enclosed, a considerable portion of the fence built" around them by the defendant having been removed by some person unknown. The complainant thereupon peaceably and, without force took possession and proceeded to enclose the lots with a fence of his own, and held possession under such entry at the date of filing his bill. As I construe the evidence, he was then the owner of the paramount title, and as such, had the right of possession and of entry, and was justified in taking possession, so long as he was able to do so peaceably and without force. Such would undoubtedly be his right at common law, and such was his right under our Statute of Forcible Entry and Detainer, as interpreted by this court in Fort Dearborn Lodge v. Klein, 115 Ill. 177 .
I am of the opinion therefore that the court below, sitting as a court of equity, had jurisdiction, and that it decided correctly in holding that, under the evidence the defendant had failed to show title as alleged in his answer and cross-bill. The decree cancelling the tax deeds and removing them as clouds on the complainant’s title should, in my judgment, be affirmed.