THIS case was brought up by writ of error from the circuit court of the United States for the district of Illinois. The case is stated in the opinion of the court. It was argued by Mr. Browning, for the plaintiff in error, and Mr. William, for the defendant in error.
The opinion of the court was delivered by: Mr. Justice Daniel delivered the opinion of the court.
Mr. Browning said that he felt some embarrassment in consequence of the decision of this court in Moore v. Brown, 11 How. 434; but he thought that a different construction had since been given to the statute by the supreme court of Illinois, in Irving v. Brownell, 11 Illinois, 402, 414. These cases were then discussed.
Wright also claimed under an auditor's deed in 1833, which was within the protection of the act of 1835, and which would have furnished a sufficient defence, if he had been in possession for seven years. Whether he was so or not, was a question of fact for the jury. But the court withdrew it from them. Wright had clearly had possession of one and a half acres, and yet the court decided that he was entitled to the protection of the statute of 1835, or that of 1839.
Mr. Browning then contended that Wright was within the act of 1839, holding under claim and color of title made in good faith, and cited Cro. Jac. 122; 9 Watts, 73; 5 Barr, 300; 3 Serg. & Rawle, 298; 6 Barr, 325; 8 ibid. 506; 7 S. & R. 173; 2 Caines, 183; 4 Johns. 202; 9 Cow. 557; 4 Paige, 199; 6 Johns. 47; 16 ibid. 299; 18 ibid. 44, 360; 13 ibid. 119; 3 Conn. 246, 402; 4 Georgia, 115; 4 Hayw. 185; 5 ibid. 288; 5 Pet. 402; 11 ibid. 41; 10 ibid. 442; 8 ibid. 244, 253.
Mr. Browning then commented on Irving v. Brownell, admitting that the court said in that case that the words, 'claim and color of title made in good faith,' in the statute of 1839, meant title of higher character and superior dignity to that intended by the words, 'connected title in law or equity, deducible of record,' in the statute of 1835. But he contended that this dictum was virtually overruled by Davis v. Easley et al. 13 Illinois, 192, 199; and then cited cases to show that the title of Wright was acquired in good faith. 16 Johns. 299; 8 Pet. 253; 9 Cow. 558.
Mr. Williams contended that the acts of 1835 and 1839 require occupancy under a title prim a facie good; the first-named act requiring residence on the land, and the other the payment of taxes, and that the claim of title be made in good faith. It is not denied that this construction is according to the fair import of the terms of these acts, nor that it is the settled construction of the Kentucky limitation law, from which the terms, 'a connected title in law or equity, deducible of record,' &c., are copied, as well as of similar acts in Kentucky, Louisiana, and Tennessee. Moore v. Brown et al. 11 How. 424; Skyle's Heirs v. King's Heirs, 2 A. K. Marsh. 387; Frique v. Hopkins et al. 4 Martin, N. S. 224; Barlow v. Bill, 4 Bibb, 106; Clay v. Miller, ibid. 461; Young v. Murray, 3 A. K. Marsh. 58; Powell v. Harrison, 2 Pet. 241; Walker v. Turner, 5 ibid. 668; Poage's Heirs v. Chinn's Heirs, 4 Dana, 50.
He then argued to show that the following consequences did not result from his construction of the laws, as was contended for by the opposite counsel:––
1. That it renders the acts altogether inoperative.
2. That it was obviously the intention of the legislature to protect the possession of a person purchasing upon the faith of conveyances made by the officers of the State who were authorized to sell and convey lands.
3. That these acts were intended to protect actual settlers and cultivators, whose titles were liable to exception, against speculators having better titles.
The questions determined by the circuit court, whose decision we are called on to review, arose upon the construction of two statutes of the State of Illinois, which limit the right of action against the possessors of lands, held by purchasers in virtue of sales and conveyances under the authority of the State, for the non-payment of taxes.
The provisions of the statutes in question are as follow:––
January 17, 1835. Sect. 1. 'That, hereafter, no person who now has, or hereafter may have, any right of entry into any lands of which any person may be possessed by actual residence thereon, having a connected title in law or equity, deducible of record from this State or the United States, or from any public officer authorized by the laws of the State to sell such lands for the non-payment of taxes, or from any sheriff, marshal, or other person authorized to sell such lands on execution, or under any order, judgment, or decree of any court of record, shall make any entry therein except within seven years from the time of such possession being taken; but when the possessor shall acquire such title after taking such possession, the limitation shall begin to run from the time of acquiring title.'
By the statute of 1839 it is enacted, 'That, hereafter, every person in the actual possession of lands or tenements, under claim and color of title made in good faith, and who shall, for seven successive years after the passage of this act, continue in such possession, and shall also during the said time pay all the taxes legally assessed on such lands or tenements, shall be held and adjudged to be the legal owner of said lands or tenements, to the extent and according to the purport of his or her paper title. All persons holding under such possession, by purchase, devise, or descent, before said seven years shall have expired, and shall continue such possession, and ...