LEWIS V. BARNHART, 145 U. S. 56 (1892)

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U.S. Supreme Court

Lewis v. Barnhart, 145 U.S. 56 (1892)

Lewis v. Barnhart

No. 1211

Submitted November 3, 1891

Decided April 25, 1892

145 U.S. 56


In 1838, R. L., a resident of Ohio, received a patent from the United States of public lands in Illinois. In 1842, he made his will in Ohio, where he continued to reside until his death in 1843. After disposing of other property, he devised his Illinois lands and bequeathed the remainder of his personal estate to his wife, J. N. L., and to the heirs of her body, to be equally divided between them, share and share alike, and he appointed her sole executrix of the will. He left no issue surviving him, although he had had children, but he left brothers and the issue of deceased brothers. His will was duly proved in Ohio, and the widow, who elected to take under it, qualified as executrix in 1843. In 1846, the Illinois lands

were sold for nonpayment of taxes assessed in 1845. The county records show no judgment for the tax sale. The lands were purchased at the tax sale by a brother-in-law of the widow, who assigned the certificate to the widow, and the deed was made to her directly. She then, through her attorney in fact, made sales of various tracts of this land at various times, until all were disposed of. The purchasers duly entered into possession, and took title, and they and those claiming under them continued in possession and paid all taxes on the lauds occupied by them respectively for periods ranging from 29 to 33 years. In 1853, a deed of a part of the tract from the widow to one M. was put on record, in which it was recited that the land conveyed by that deed had been held by R. L. and had been devised by him. The county records also contained a copy of the Book of Land Entries, furnished by the auditor to the county clerk for the purpose of taxation, but with these exceptions those records contained nothing pointing to the patent to R. L., or to his will, or to the interest devised by it to his widow, J. N. L., until 1866, when what purported to be a copy of the will was filed in the office of the recorder of the county. To this copy were attached copies of the affidavits of the subscribing witnesses to the will in proof of its execution and a certificate signed by the judge and by the clerk of the probate court in Ohio that these were copies of the will and affidavits and order and proceedings taken from the originals in that court; but there was no copy of the

Page 145 U. S. 57

order and of the proceedings admitting the will to probate. The widow died in 1888, not having married again and leaving no issue. Up to that time, no one of the several purchasers nor anyone claiming under them had actual notice that R. L. had been seised of these lands through a patent from the United States, or of his will, or of its provisions, nor any constructive notice thereof other than is to be implied from the public records of the United States and of the county. On the death of the widow, the direct descendants of the brothers of R. L., being his only heirs at law, brought these actions of ejectment against the several persons occupying and claiming title to said several tracts of land, to recover possession of the same, maintaining that the tenancy of the widow and of all claiming under her was a life estate for the term of her life, and that the statute of limitations did not begin to run against the remaindermen until the expiration of the life estate.


(1) That the sheriffs deed for the land sold for taxes, being regular on its face and purporting to convey the title to the land described in it, was sufficient color of title to meet the requirements of the statute of limitations of the state of Illinois without proof of a judgment for the taxes.

(2) That the book of land entries in the county clerk's office furnished by the auditor to the county clerk for the purposes of taxation was not constructive notice of the issue of the patent for the public lands to R. L.

(3) That the will of R. L. was not authenticated and certified by the officers of the probate court in Ohio in a manner to entitle it to record under the statutes of Illinois, and that the record of it there, without proper proof of its probate in Ohio, was not constructive notice of it and of its contents.

(4) That the recital in the deed from J. N. L, to M. in 1853 was at most notice of the facts recited in it to the grantee and those clamming under him.

(5) That, by the law of Illinois, the actual possession of the several defendants, for more than seven successive years prior to the commencement of these actions, of the lands in controversy under claim and color of title made in good faith -- that is, under deeds purporting to convey the title to them in fee, and the payment of all taxes legally assessed on them, without notice, actual or constructive, during that period, of any title to or interest in the lands upon the part of others that was inconsistent with an absolute fee in their immediate grantors, and in those under whom such grantors claimed, entitled them to be adjudged the legal owners of such lands according to their respective paper titles, even as against those, if any, who may have been entitled by the will of R: L. to take the fee after the death of his widow without heirs of her body.

(6) That, in view of the foregoing, it was unnecessary to pass upon the nature of the estate devised to J. N. L.

Page 145 U. S. 58

Ejectment. The Court stated the case as follows:

These actions of ejectment were brought in the year 1889. The lands in controversy are parts of a larger tract of 1,600 acres in Woodford County, Illinois, entered by Romeo Lewis, in the year 1838 at the land office in Springfield, in that state, and of which he was seised in fee by a patent from the United States at the date of his will, January 8, 1842, as well as when he died at his residence in Oxford, Butler County, Ohio, on the 24th day of June, 1843.

The parties, in writing, waived a jury, and the cases were severally tried by the court, which made a special finding of facts, on which judgment was rendered for the respective defendants. Each action was held to be barred by the statute of limitations of Illinois protecting the actual possession, continued for seven successive years, of land or tenements, under claim and color of title made in good faith and accompanied by the payment during that period of all taxes legally assessed on them. The principal contention of the plaintiffs in error, who were the plaintiffs below, upon this point is that limitation did not commence to run against them until shortly before these actions were instituted, and consequently the statute has no application.

In case 1,211 Lewis v. Barnhart, the facts upon which the judgment was based were substantially as follows:

By his will, which was admitted to probate and recorded in the county of his residence in Ohio, the testator directed his interest in lands in the Territory of Florida and in the states of Arkansas and Mississippi to be sold, and the proceeds, together with moneys that might be derived from other sources, applied to the payment of his just debts. After making certain bequests of money to his mother, nieces, and others, the will proceeds:

"I further give and devise to my dearly beloved wife, Jane N. Lewis, and to the heirs of her body, my houses and lots in the Town of Oxford, Butler County, Ohio, and all the residue of my lands in the States of Indiana and Illinois, and all the rest, residue, and remainder of my personal estate, goods, and chattels of every kind and description whatsoever,

Page 145 U. S. 59

to be equally divided between them, to share and share alike; and, lastly, I hereby appoint my said beloved wife, Jane N. Lewis, sole executrix of this, my last will and testament, hereby revoking all my former wills by me made, and I do hereby ratify and confirm this and no other to be my last will and testament."

The testator left no issue surviving him. Three children died prior to the date of the will. The fourth, born April 15, 1843, lived only a few days. He had no sisters. But he had four brothers, three of whom died before he did, while the fourth survived him. His wife was only 34 years old at the date of the will. She remained a widow, and died in July, 1888, aged 80 years, leaving no issue.

The plaintiffs are the direct descendants of the testator's brothers, and his only heirs at law.

The widow qualified, in the proper court of Ohio, as executrix, and, in open court, September 25, 1843, elected to take under the will.

The lands in controversy were assessed for taxation in Woodford county for the years 1844 and 1845 in the name of Romeo Lewis as patentee and owner. They were then "wild lands," uncultivated, of little value, and in a new and sparsely settled country. On the 13th of October, 1846, they were sold for the taxes of 1845, Guernsey Y. Roots, the husband of a sister of Jane N. Lewis, becoming the purchaser. He knew at the time, of the existence and probate of the will of Romeo Lewis, as well as of the appointment of Jane N. Lewis as executrix, and of her election to take under the will. But the relationship of Roots, to Mrs. Lewis was not known to the defendants, or to anyone under whom they claim.

The records of the circuit court and recorder's office in Woodford county, as they existed at the time of the trial, did not show any judgment entered against the lands for the taxes of 1845. Nevertheless, the sheriff, by deed of May 16, 1849, conveyed them to Jane N. Lewis, as assignee of Roots' certificate of purchase, the deed reciting that "at the September term, 1846, of the Circuit Court of Woodford County, a judgment was obtained in favor of the state" for the taxes, interest,

Page 145 U. S. 60

and costs assessed upon the lands for the year 1845, and that the sheriff, on the 13th of October, 1846, by virtue of a praecipe issued September 20, 1846, exposed them for sale, in conformity with the requirements of the statute, "for the satisfaction of the judgment so rendered as aforesaid." This deed was duly acknowledged and recorded on the day it bears date.

By power of attorney given May 7, 1856, and duly recorded July 24, 1856, Harry Lewis, of Ohio, the surviving brother of the testator, was constituted by Mrs. Lewis her attorney to sell and convey in fee simple, by deed of general warranty, these and other lands in Woodford County, Illinois. In virtue of this power of attorney, Lewis executed to Absalum Doherty a bond, dated June 21, 1856, for a conveyance by deed of general warranty, the consideration recited being $5,600, for which Doherty gave his note. This bond was recorded July 7, 1856. In that year, Doherty went into possession and improved the lands, claiming them under the above contract and bond. Within two years after taking possession, he enclosed them with fences, built two houses upon them, and put a large part of them in cultivation.

On the 15th day of August, 1866, what purports to be a copy of the will of Romeo Lewis was recorded in one of the books containing the record of deeds in the recorder's office of Woodford County.

Mrs. Lewis, in execution of the contract with Doherty, made to him, August 31, 1866, a warranty deed. He resided upon the lands continuously until his death, on the 15th of September, 1876. He left a widow and a son as his sole heir, who remained in possession until the 4th day of February, 1881, when they united in a conveyance to Lawrence Gasner. The latter held possession under that conveyance until November 1, 1881, when he conveyed by warranty deed to the defendant Gish, who has continued in possession under that deed. The defendant Barnhart is only a tenant of Gish.

In 1858, Doherty paid the taxes on the lands for the year 1857, and he and those claiming under him paid all the taxes assessed against them up to the commencement of this action.

Page 145 U. S. 61

It was stipulated between the parties, and the court found, that neither the defendant Gish nor his grantor nor anyone under whom he claims except Jane N. Lewis had, prior to September 1, 1889, any notice that Romeo Lewis was seised of these lands at the time of his death, by patent from the United States, other than such as may have been conveyed constructively at the date of the above bond and deeds by the book of land entries in the office of the County Clerk of Woodford County, Illinois, furnished by the auditor to the county clerk for purposes of taxation, or by the fact that the lands were assessed for taxation in 1845 in the name of Romeo Lewis, and were sold for the nonpayment of taxes in 1846; or by the record of a deed from Jane N. Lewis to John G. Mohr, dated February 8, 1853, and recorded in that county, which described the land thereby conveyed (what particular lands the record does not show) as

"said tract of land having been held by Romeo Lewis, the deceased husband of the grantor, and to her devised in the last will and testament of said Romeo Lewis."

Nor did the defendant or any of the persons through whom he claims title, except Jane N. Lewis have any knowledge whatever of the existence or probate of the will of Romeo Lewis prior to the time when what purported to be a copy of it was recorded, as above stated, in Woodford County, unless notice was to be imputed to them by the record of the above deed from Jane N. Lewis to Mohr, or by the record and probate of the will in 1843 in Butler County, Ohio.

It was further stipulated and found that

"the defendants have a complete chain of title, properly recorded at the date of said deeds or bonds for deeds, to the lands described in the declaration in this case, under deeds with full covenants of warranty, from Jane Lewis to themselves, which deeds were also properly recorded at the dates of the execution thereof, and that said lands have been actually occupied and resided upon by the defendants and their grantors from the date of the purchase thereof, as shown by said deeds from Jane N. Lewis, and that they have severally paid all taxes assessed on said lands from the date of said deeds to the present time. "

Page 145 U. S. 62

The other cases named in the beginning of this opinion depend upon facts similar to those above set forth. The defendants in each case hold under bonds and deeds, or under deeds only, from Jane N. Lewis, which were duly recorded, and, prior to the commencement of these actions, they had been in actual possession, paying all taxes assessed on the lands occupied by them, respectively, for periods ranging from 29 to 33 years.

Page 145 U. S. 68

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