finding that when the appellant waited 15 years to assert himself against a tax title and the grantee of the tax deed died before the cause could be heard, “important evidence on the issue of possession under the tax deed was lost,” which pointed to “the inequity of granting relief”
How later courts described this case
- finding that when the appellant waited 15 years to assert himself against a tax title and the grantee of the tax deed died before the cause could be heard, “important evidence on the issue of possession under the tax deed was lost,” which pointed to “the inequity of granting relief”
- finding that although appellant claimed to have no notice of matters adverse to his ownership, “public records served as 7 No. 1-24-2200 constructive notice to him” and that absent his “negligence and indifference,” he would have discovered the alleged deficiencies he complained of
- stating that party’s failure to take remedial action is not excused because he did not understand his mineral rights could be sold to satisfy delinquent taxes without sale of attendant land
- stating that “ignorance of the law or legal rights will not excuse delay in bringing suit”
Written by the judges who cited it.
The opinion
Mr. Justice House, specially concurring:
I agree with the conclusion reached by the majority but in my view it should be grounded upon section 7 of the Limitations Act, (Ill. Rev. Stat. 1955, chap. 83, par. 7,) rather than laches.
Section 7 is practically identical with the original enactment approved March 2, 1839. It provides that one having color of title, made in good faith, to vacant and unoccupied land, who pays all taxes legally assessed for seven consecutive years, shall be deemed and adjudicated to be the legal owner, to the extent and according to the purport of his paper title. While nothing is said about the necessity of taking possession, this court over the years has held that in order to bar the rights of the owner of the paramount title the holder of color of title must take possession after the expiration of the seven-year period. Paullin v. Hale, 40 Ill. 274 ; Travers v. McElvain, 200 Ill. 377 ; Gage v. Smith, 142 Ill. 191 ; Wood v. Glos, 257 Ill. 125 ; Wylie v. Fisher, 337 Ill. 488 ; Robertson v. Bachmann, 352 Ill. 291 .
The possession rule poses a serious problem when applied to severed minerals. It is the apparent weight of authority that solid minerals must actually be removed from the ground and that fugacious minerals be produced in order to reduce such minerals to possession. (See Summers, The Law of Oil and Gas, Vol. iA, sec. 138, pp. 307, 315-320.) Therefore, in order to acquire possession of minerals, if the above rule is made applicable to severed minerals, a mineral holder would have to not only mine or drill, but would have to find minerals.
It is unrealistic to say that it was the legislative intent to impose such an expensive and harsh burden. Much of the language of the dissent of Mr. Justice Hershey in the case of Pickens v. Adams, 7 Ill.2d 283 , while dealing with a different section of the statute, is applicable to this problem. I am heartily in accord with his views therein expressed.
An examination of the history of the possession rule reveals that it stems from the early case of Newland v. Marsh, 19 Ill. 376 . The validity of the section was upheld on the ground that it was a limitation law. It is noteworthy, however, that, although later cases inferred that the possession rule was contained in Newland v. Marsh, 19 Ill. 376 , such is not the case. There the court said, at page 385 : “It [the statute] does not commence running only from possession taken of the land, but from, the time of the concurrence of the two things — the color of title and payment of taxes — and has performed its office, when the color of title and payment of taxes have gone together for the period of limitation; and it is the same to the party availing himself of the bar whether he is sued whilst in or out of possession.”
Notwithstanding the foregoing quoted language, the court, in Paullin v. Hale, 40 Ill. 274 , at page 277, said: “Ever since the case of Newland v. Marsh, 19 Ill. 376 , it has been the settled law of this court, that this second section [now section 7] cannot be used as a sword, unaccompanied by possession, and to that rule we intend to adhere.” It was recognized by the court in McCagg v. Heacock, 42 Ill. 153 ) tliat Newland v. Marsh did not adopt the possession rule, but the McCagg case said that the question of whether the holder of color of title could interpose the statute if out of possession was not before the court in Newland v. Marsh and therefore was merely dictum on the point.
Two things appear to have been overlooked over the years by the court, first, all of the early cases involved ejectment actions, which require possession; second, no differentiation has been made between cases where color of title was created pursuant to a judgment or decree of a court of record (such as a tax deed), and those cases where it was derived from a stranger. I feel that the whole question of the possession rule should be carefully reexamined and reappraised in its application to severed minerals, to surface, and to surface with unsevered minerals, if and when properly presented.
In the case now before us, I would hold that the possession rule does not apply. Tax deeds may be held invalid by a court upon various grounds within the seven-year period but, after the expiration of that period, section y should be held to be a complete bar to questions in regard to the tax sale. The purchaser should, with color of title through a tax deed and payment of taxes for seven years, whether in or out of possession, be granted relief from stale claims arising more than seven years later.
The merchantability of titles remains unsettled for years because of the line of possession decisions of this court under section y. The title to great areas of severed minerals in this State is in question. If each case must be decided on the grounds of laches, then the instability of title continues since no one is in a position to determine if a claim is barred on the ground of laches in any given case.
Our natural reluctance to overrule cases long recognized as the law should not deter us where it is apparent that they are wrong as applied to the circumstances of the case before us. To hold as suggested herein would do much to stabilize tax and other defective mineral titles held under color of title by a deed issued pursuant to a judgment or a decree of a court of record. I would overrule the line of cases earlier referred to when applied to the circumstances here presented. This approach seems much less strained than the decision of the majority which is based on laches.
Mr. Justice HershEy joins in this special concurrence.