and premises to B. D. Ellett for the term of two years, or until Matthew should return from California, whither he was making arrangements to soon depart. In consideration of this renting Ellett paid Matthew $100 in cash, and agreed to finish the building, take care of the property, pay the taxes upon it, and settle the balance when Matthew returned; and thereupon he was let into possession. The taxes for which the sale was made by the sheriff were, then, taxes which it was the duty of Ellett to pay. He could not acquire a title adverse to Matthew, or to Matthew's heirs at law, growing out of his own neglect to perform his contract. At most, he could but become seized, by virtue of the sheriff's deed, in trust for Matthew, if living, and for his heirs at law, if dead. O'Halloran v. Fitzgerald, 71 Ill. 53.

It will also be perceived, from the statement preceding this opinion, that, after thus leasing the property, Matthew conveyed it, on the twenty-fifth day of February, A. D. 1850, to Stephen S. Phelps to secure a loan of money. The proof is clear that when Matthew, his father, and his brother next in years to himself (John) left for California, in the spring of 1850, they left the family, which then included Jane, (the mother,) James, (the oldest of the children remaining at home,) and William, Robert, and Charles, (his younger brothers,) and Eliza, Jane, and Maria, (his sisters,) all living together as a family in a little log house, and they continued to thus live together as a family for some years. James, although a minor, became the head of the family. He worked first at farming, and the other children worked about, but remained at home. Afterwards he worked at brickmaking, and one or more of the younger boys worked with him, and the mother, Jane, boarded the hands. The father died in California, then (in 1850 or 1851, the evidence is not specific which) Matthew died, and soon afterwards John died. Whether any money was derived from the estates of either of these is not certain. The inference, however, is in the negative. It is shown by a remark attributed to the mother, Jane, that, before Stephen S. Phelps conveyed to the heirs at law of Matthew, which was on the fourth of August, A. D. 1852, she claimed that it was his duty to convey; but whether he had been paid the loan by Matthew before his death, or was paid by her or some other member of the family afterwards, does not appear. Ellett left the property, as his widow testifies, on the twenty-fifth of December, A. D. 1853; and several witnesses testify that, when he moved out of the house, James and his mother and his younger brothers and his sisters moved into it. There are two or three witnesses who testify to having rented portions of the house in 1854 from James, and being in possession afterwards for sometime, and that, during the time of their occupancy, the mother and family were not in the actual occupancy of any part of the property. It is difficult to reconcile the testimony of these witnesses with that of those who testify that James and his mother and his younger brothers and his sisters occupied the house immediately after Ellett moved out, and thence continuously until after the marriage of James, in 1856. But, in any view, the evidence all agrees that James and his mother and his younger brothers and his sisters did reside together as a family until after his marriage, and a portion of the time in this house. Although we cannot ascertain with precision what was the age of James at the date of the conveyance by Ellett to him, the inference from circumstances proved is that it could not have exceeded 21 years, if, indeed, it was that.

In effect, then, up to that time the evidence authorizes the conclusion that he had lived with his mother's family, working for it, and managing for it, as the head of the family, and, as against his mother, was not entitled to retain any compensation he may have received for his services; and the evidence therefore repels any inference that he could have had, at that time, any property separate and apart from that belonging to the family in common. The evidence establishes that the family had trouble with Ellett in regard to the property before he moved out of the house. Thus the widow of Ellett

testifies: "There was some controversy with my husband about the rent of the property, but I do not know what it was." Thomas Rippey, a nephew of the mother and a cousin of James, testified: "I heard of some trouble between Patterson and Ben Ellett. My father came from New Jersey to Mercer county to settle with Ellett for Mrs. Patterson. * * * She wanted Ellett out of the house."

From all the circumstances it is evident that James must have known of the conveyance by Phelps to the heirs at law of Matthew, and of the contract between Matthew and Ellett. The circumstance that Ellett surrendered possession of the property some months before he conveyed it to James tends strongly to prove a recognition upon his part that he then claimed no right to hold the possession under his deed; and it is unreasonable to suppose that James, a member of his mother's family, and the acting head of it, was not entirely familiar with the whole transaction, and the motives controlling. The lapse of time, and the death of Ellett and James, render more specific proof unattainable. Our conclusion is that James knew that Ellett acquired the deed in violation of his duty under his contract with Matthew, and so that he held in trust for the heirs at law of Matthew, and, thus knowing, the deed of Ellett only made him trustee instead of Ellett.

But if we are mistaken in supposing that James knew that Ellett had thus obtained his deed, still the title, before that deed was executed, was in the heirs at law of Matthew, of which the prior record of the Phelps deed gave him notice. They claimed the right to the possession of the property, and, under that claim, Ellett surrendered the possession to them. The possession of James was not actually exclusive of that of his mother and his younger brothers and sisters, but in common with theirs; and the reasonable conclusion from the evidence is that any money that James paid Ellett was money which legally was the common property of the family, whether earned by him, he being a minor, or derived in some other way. And yet, if it be conceded that it was the money of James in fact and in law, inasmuch as the evidence shows no prior disseizin of his mother and his younger brothers and his sisters, but a tenancy in common with them, the law requires that the title acquired from Ellett shall be held for the equal benefit of all the heirs at law of Matthew; the others being required only to make contribution for the amount thus expended for the benefit of a common estate. Busch v. Huston, 75 Ill. 343; Ball v. Palmer, 81 Ill. 370; Park Com'rs v. Coleman, 108 Ill. 591. There is evidence that Jane, the mother, frequently said that she claimed under the will, and only a life-estate. These remarks, it is evident, could not affect her co-heirs; and it being apparent that they were based on a mistake, and it not being pretended that any one acted upon them to his injury so as to create an equitable estoppel, they could not conclude her. Whether, if they had been communicated to Taliaferro before he purchased, they would conclude him on the question of good faith, we are relieved from inquiring, since no one testifies that Taliaferro was informed, before his purchase, that she claimed only a life-estate; and he himself testifies positively that he never heard of such a claim before he purchased, and that, at that time, he did not even know that James had made a will.

It is contended, on behalf of Burgett, that, after the death of James, the mother (Jane) remained in possession as co-tenant with her children, from whom Burgett purchased; that, while thus in possession, she, as co-tenant, rented two of the rooms in the house to Taliaferro; that Taliaferro afterwards went into possession under the contract made with her on the sixteenth of June, A. D. 1874, in which she only purported to sell and deliver possession to him of what she claimed as the heir at law of Matthew Patterson, and the interests of four of her children as heirs at law of Matthew; and that Taliaferro's possession being thus in its inception not adverse, but in subordination, to the title of the parties from whom Burgett purchased, any purchase

of title that he mile afterwards is presumed to have been not adverse to the interests of his co-tenants, but in subordination to their rights, and to inure to the benefit of all the tenants in common.

The evidence fails to show that, when Mrs. Patterson rented the two rooms to Taliaferro, she rented only the interest of a tenant in common. On the contrary, she is shown, at the time, to have had the exclusive possession of the property, making it her home, and exercising sole dominion over it. So far as the evidence shows what she claimed by her possession at that time, it shows that she claimed to be a life-tenant. But whatever, as between her and her co-heirs, may have been her legal rights, as between Taliaferro and her, she was, in that renting, landlord of the entirety. He was bound to attorn to her only. There is no evidence anywhere in the record that shows that Taliaferro, by the act of renting, recognized any other parties as landlords, or assumed any legal liability on that account to any one but her. The contract of the sixteenth of June, it is true, recites that Mrs. Patterson does thereby put Taliaferro in possession of the lot; but that was a matter in pais, the actual performance of which was to be in the future, and it is therefore liable to be explained or contradicted by parol. The parol evidence overcomes the recital, and clearly shows that Taliaferro was not put in possession of the lot under that contract. Thus Thomas Rippey testified: "Mrs. Patterson was living in the house in June and August, A. D. 1874, when she sold to Taliaferro." B. C. Taliaferro testified: "I have been in possession of the property in controversy, and occupied it, by actual residence by tenants, since August, A. D. 1874, until this time. * ** I went into possession under my deed from Jane Patterson. * The warranty deed from Jane Patterson was not taken under the contract offered in evidence. I was to pay her $100 under the contract. She told me then that two of her children had made her deeds. Afterwards she told me she had got deeds from all of her children to enable her to raise money to go to California. I told her, if she would give me a warranty deed, I would pay her $300; and she made the deed in pursuance of this contract."

But, apart from the evidence, we think the appellants are estopped, by the pleadings, from questioning that Taliaferro's entry into possession was under the deed made to him by Mrs. Patterson. It is alleged in the original bill "that said Taliaferro has been in possession of said premises," not under his renting, nor under the contract of sale, but, "under said deed, since 1874;" and there is a like allegation in the cross-bill, and this allegation is admitted as to the interests in the lot therein described. It is a direct admission that she then had only those interests; but it admits nothing as to her title, when she afterwards, on the twenty-fifth day of August, A. D. 1874, conveyed the whole by a warranty deed. Taliaferro, as has been seen, testifies that she then claimed that her children wanted her to sell the property and move to California; that she had obtained deeds of the interests in the property of all of her children; and it is clear, if she had obtained such deeds, then she had ceased to be a tenant in common, was entitled to the sole possession, and might sell and convey this property just as if she had always been sole owner. The question is not, what title did she actually have, but what title did she assume to have, and to convey? Color of title does not mean actual title, nor does the question of notice of outstanding titles affect it. Dickenson v. Breeden, supra; Woodward v. Blanchard, 16 Ill. 433; McCagg v. Heacock, 34 Ill. 476; Cook v. Norton, 43 Ill. 391; Rawson v. Fox, 65 Ill. 200; County of Piatt v. Goodell, 97 Ill. 84; Conner v. Goodman, 104 Ill. 365; Smith v. Ferguson, 91 Ill. 304.

Taliaferro swears that, when Jane Patterson told him she had obtained deeds of the interests of all her children, he believed her, and that he then paid her $300 for a warranty deed for the lot in good faith; and these cases hold that the fact that he was negligent in not examining the records, and re

quiring the production of the deeds, is not sufficient to overcome that testi

mony.

It was said in McCagg v. Heacock: "The knowledge of an adverse claim upon property does not of itself indicate bad faith in a purchaser, and is not even evidence of it, unless accompanied by some improper means to defeat such claim." See, also, Whitney v. Stevens, 77 Ill. 586; Coleman v. Billings, 89 Ill. 183. In the last-named case we quoted with approval from McCagg v. Heacock, 42 Ill. 157, this language: "The doctrine is that bad faith, as contradistinguished from good faith, in the limitation act, is not established by showin actual notice of existing claims or liens of other persons to the property, or showing a knowledge, on the part of the holder of the color of title, of legal defects which prevent the color of title from being an absolute one. Where there is no actual fraud, and no proof showing that the color of title was acquired in bad faith, which means in or by fraud, this court will hold it was acquired in good faith."

The only circumstance here relied on as showing bad faith in the purchase, aside from the question of notice of record, and that Taliaferro ought to have known, and would, if he had been diligent, that Alvin Patterson was a minor, and therefore could not convey his interest in the lot by a good deed to his grandmother, is the evidence of one witness that the lot was worth more by several hundred dollars than Taliaferro paid for it. There was no proof that Jane Patterson was in any way misinformed or deceived by Taliaferro, or that the value of the lot was not as easily to be ascertained by her as by him; or, indeed, that she has ever been or is now dissatisfied with the price she received for the lot. This is very clearly insufficient to prove such fraud as is within the contemplation of the cases referred to.

But it is further contended that, inasmuch as Jane Patterson was only in fact a co-tenant of the property with the other heirs at law of Matthew Patterson, her deed only conveyed her interest to Taliaferro, and he thereby became only a tenant in common, as she had been, and that it is not any further even color of title. Had her deed only purported to convey her interest in the property, this would be true; but her deed, as has been seen, assumes to convey the entire title to the lot, and to warrant and defend it. This operated as a disseizin of her co-tenants, and the statute commenced running against them from the moment it was put upon record, followed, as it was, by the exclusive possession and payment of taxes by Taliaferro. It is said by a modern author of high standing: "If the conveyance made by a tenant in common, in addition to purporting to dispose of the entirety, contain a covenant of general warranty against the claims of all persons, no room is left for a doubt that the grantor intended to deal with the lands as his individual estate, and that the grantee believed that he was acquiring an estate in severalty. The entry of the grantee cannot be presumed to be that of a co-tenant, nor in subordination of the rights of co-tenancy. Acts of ownership on the part of such a grantee must necessarily be adverse to any other part owner. His possession, taken under such deed, and continuing the requisite period of time, creates in him a complete title in severalty by virtue of the statute of limitations. When one tenant in common conveys the whole estate in fee, with covenants of seizin and warranty, and his grantee enters, and claims and holds exclusive possession, the entry must be deemed adverse to the title and possession of the co-tenant, and amount to a disseizin." Freem. Co-tenancy, § 224. See, also, authorities cited by him; and Parker v. Proprietors of Lock, etc., 3 Metc. 91; S. C. 37 Amer. Dec. 121, and notes, 126; and also Goewey v. Urig, 18 Ill. 238; Hinkley v. Greene, 52 Ill. 223.

The judgment must be affirmed.

(118 Ill. 492)

GOLDEN RULE v. PEOPLE ex rel. SWIGERT, Auditor, etc.
(Supreme Court of Illinois. November 13, 1886.)

BENEVOLENT SOCIETIES-WHEN WITHIN PROHIBITION AGAINST INSURANCE.

Where, by the constitution and by-laws of a mutual benefit society, a certain fund, voluntarily contributed by members, is set apart, from which a certain sum is, upon the death of a member, paid to the beneficiary designated by him, and a certain other sum to the living members holding numbers just above and just below the number of the deceased member, such provision constitutes a wagering policy of insurance, and the society is therefore exercising the functions of an insurance company, and is within the prohibition of the Illinois insurance statutes. 1 Starr & C. St. Ill. c. 73; Id. c. 32, par. 31.

Appeal from Warren.

Hooker & Edmunds and W. C. Norcross, for appellant. E. S. Smith, for appellee.

SHELDON, J. This was a proceeding by information in the nature of a quo warranto against the Golden Rule and its directors. The information contains three counts. The first sets forth the organization of the Golden Rule as a body corporate under the general incorporation law approved April 18, 1872, (Rev. St. 1874, p. 290,) and its mode of doing business, and avers that it has usurped, and now usurps, powers and franchises not conferred by law; the second avers that the corporation has wrongfully, and without warrant of law, engaged in and transacted a life insurance business, and is therein wrongfully usurping power; and the third count sets forth that it has unlawfully usurped and exercised powers and franchises in respect to its so-called "relief fund," and is so doing. To the information two pleas were filed,— one by the corporation, and the other by the directors. These pleas set forth all the facts concerning the organization, objects, operation, and business of the corporation, its constitution and by-laws, etc., and deny that it has exercised any power or franchise not warranted by law. A demurrer was sustained to the pleas.

The defendants have appealed to this court, and assign for error the decision of the circuit court in sustaining the demurrer, and entering judgment of ouster.

Among the objects of the association as set forth in the pleas are: "Second. To aid its members in the struggles incident to life, and to assist its sick and distressed members in every way that may be suggested by a refined humanity. Third. To establish a fund, by voluntary contributions, for the benefit and relief of the widows and orphans of deceased members; thereby securing the blessings of independence to those who otherwise might be left in poverty. Fourth. To give material aid to those who, through a long series of years, may have had their charity drawn upon by frequent and continued contributions; thus securing in old age a realization of mutual aid and protection." Section 1, art. 4, of its constitution is:

"ARTICLE 4.

"Section 1. The supreme council shall establish, by voluntary contributions from the members of the order, a relief fund from which, upon the death of a member, an amount not exceeding $1,500 shall be paid to such person or persons as shall have been designated by such deceased member, and a sum not to exceed $500 shall be distributed in accordance with the custom and laws of the order; and the subordinate councils shall have authority to establish a charity fund, by voluntary contributions from the members of the order, to be devoted to the relief of worthy distressed members."

In section 2 of the by-laws it is declared:

"Sec. 2. The relief fund shall consist of contributions received from its members upon the death of a member. The amount so raised shall be distrib