Statement of the Case.

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 testament."

my last will and

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 thirty-four years old at the date of the will. She remained a widow, and died in July, 1888, aged eighty 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 any one 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's 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, inter

Statement of the Case.

est and costs assessed upon the lands for the year 1845, and that the sheriff, on the 13th of October, 1846, by virtue of a precipe 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 $5600, 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.

Statement of the Case.

It was stipulated between the parties, and the court found, that neither the defendant Gish, nor his grantor, nor any one under whom he claims, (except Jane N. Lewis,) had, prior to September 1, 1889, any notice that Romeo Lewis was seized 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."

Argument for Plaintiffs in Error.

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 twenty-nine to thirty-three years.

Mr. Sabin D. Puterbaugh, Mr. Thomas Millikin, Mr. Palmer W. Smith and Mr. Leslie D. Puterbaugh, for plaintiffs in error, submitted on their brief. Touching the Illinois statutes of limitations, the only point considered in the opinion of this court, they said:

The defendants in error claim under the statute of limitations: First, Under section 1, adverse title and possession, without notice, for over twenty years; Second,- Under section 6, claim and color of title, made in good faith, actual possession and payment of taxes for the period of seven years.

The plaintiffs in error claim that the statute of limitations cannot run as against them during the lifetime of Mrs. Lewis, because during that period they had no right of entry or action.

No disseisin of the tenant of a particular estate and occupation under it, however long continued, will affect the right of the reversioner. And the doctrine may be laid down as universal, that no possession can be held to be adverse as to one who has no right of entry and possession during its continuance. Deryer v. Schaeffer, 55 N. Y. 446. The latter may enter whenever the particular estate shall determine by its limitation. Miller v. Ewing, 6 Cush. 34; Jackson v. Schoonmaker, 4 Johns. 390; Salmons v. Davis, 29 Missouri, 176. The statute does not run against a reversioner till the death of the tenant for life, when the latter has conveyed the estate in fee, Gernet v. Lynn, 31 Penn. St. 94; Melvin v. Merrimack Locks and Canals, 16 Pick. 137; S. C. 17 Pick. 255; Raymond v. Holden, 2 Cush. 269. And where a husband and wife were disseized, and the disseisor held adverse possessior

Argument for Plaintiffs in Error.

for the period of limitation, which possession would bar the right of the husband, if living, at his death, she, or her representatives might claim the land. Gregg v. Tesson, 1 Black,

150.

If the possession was taken under a title not originally hostile to the true owner it will be intended that his possession was not adverse. Jackson v. Thomas, 16 Johns. 293; Smith v. Burtis, 9 Johns. 174; Jackson v. Johnson, 5 Cowen, 74; S. C. 15 Am. Dec. 433. And the purchaser of an estate for life holds in subordination to the reversioner; and an adverse possession against the reversioner cannot be predicated on it. Jackson v. Graham, 3 Caines, 188; Jackson v. Town, 4 Cowen, 599; S. C. 15 Am. Dec. 405; Jackson v. Parker, 9 Cowen, 73. And this is the law although he supposed his deed gave him the fee. Learned v. Tallmadge, 26 Barb. 443; Barrett v. Stradl, 73 Wisconsin, 385. The statute of limitations does not run against reversioners. Angel on Limitations, Sec. 370.

The possession of a tenant for life is never deemed to be adverse to his reversioner. Grout v. Townsend, 2 Hill, 554; Austin v. Stevens, 24 Maine, 520; Varney v. Stevens, 22 Maine, 331. Nor if he be disseized are the rights of the reversioner thereby affected; and he may enter or sue in an action to recover possession within twenty years after the death of the tenant for life, without regard to the lapse of time during which the disseisor may have held the premises. Jackson v. Mancius, 2 Wend. 357; McCorry v. King, 3 Humph. (Tenn.) 267; S. C. 39 Am. Dec. 165; Jackson v. Schoonmaker, 4 Johns. 390; Foster v. Marshall, 2 Foster, 491; Guion v. Anderson, 8 Humph. (Tenn.) 325. And if one who enters upon land under an agreement with a tenant for life continues to hold possession after her death he becomes as to the reversioner a mere trespasser. Williams v. Caston, 1 Strobhart, 130.

It has been further held that if the tenant for life do any act with the property which works a forfeiture of the same it only affects his interest, but not that of the reversioner. Archer v. Jones, 26 Mississippi, 583, 589. So if the tenant does an act by which he incurs a forfeiture of the estate the reversioner is not bound to treat the estate as merged in his