Opinion of the Court.

The bond for $2000.00, in addition to the provision in regard to performing the covenants of the deed, contains the following language: "To him, the said Thomas T. Moores, his executors, administrators and assigns, we bind ourselves, our administrators, executors and assigns, that we will pay or cause to be paid all liens against the above described 261880 acres, whether by mortgage or otherwise, at this time standing, within three years from this date, then if such liens, whether by mortgage or otherwise, are fully paid and cancelled, or caused to be paid and cancelled, this obligation to be void," etc.

The portion of the bond thus quoted amounts, in effect, to an executory contract bearing date eight. days after the date of the warrantee deed. The mortgage to Mary E. Brogden was a lien standing against the land at the date of the contract. The Towns did not pay off the mortgage within three years, but suffered it to be foreclosed, resulting in a conveyance to the purchaser at the foreclosure sale and a judgment for possession against appellee. No question is made as to the validity of this mortgage sale or of the deed made in pursuance thereof. The appellee was not bound to take the risk of paying the incumbrance himself. He had a right to rely upon its payment by the obligors in his bond. He may not have had the money to discharge it.

It is unnecessary to inquire what may be the proper measure of damages in an action on the covenants against incumbrances and for quiet possession. The executory contract, embodied in the terms of the bond, is independent of the covenants in the deed, and, for the breach of this contract, appellee is entitled to recover such damages as are the necessary, natural and proximate result of such breach. He lost his title to the 26 acres, and the land itself, by the sale under the mortgage, and the proceedings for possession, which followed. The measure of his damages is the actual consideration which he paid for the land, together with interest at six per cent. The consideration named in the deed is the sum of $2000.00.

Opinion of the Court.

Prima facie the sum so named is the amount paid for the land. But, as between grantor and grantee, the recital in the deed is not conclusive evidence of the consideration paid. The actual consideration, which passed between the parties, may be shown by parol testimony to be different from the consideration recited in the conveyance. (3 Wash. on Real Prop. (4th ed.) page 375; Kimball v. Walker, 30 Ill. 482; Illinois Land and Loan Co. v. Bonner et al. 91 id. 120; McCrea v. Purmont, 16 Wend. 460; Morse v. Shattuck, 4 N. H. 229; Parker v. Brown, 15 id. 176.)

The appellee, on July 1, 1874, purchased the tract from Sylvanus Town by deeding to the latter two town lots known as the Rose street property and by executing his note for $1000.00. It appears from the testimony of four witnesses, that, on July 1, 1874, the Rose street property was not worth more than $500.00. Therefore the appellee will be made whole if he gets back his note and receives $500.00 with interest. By the decree of the Circuit Court the note is returned to him. In addition to this he is entitled to recover $500.00 with interest at six per cent from July 1, 1878. Under the circumstances of this case, interest should not be allowed from July 1, 1874, because appellee was in possession of the 26,83 acres, drawing the rents and profits, as late as some time in June 1878.

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Our conclusion is that the decree of the court below is right in finding $2753.60 to be due to the appellee upon the notes, and in ordering the appellant to surrender to appellee the latter's note for $1000.00; but the decree should be so modified as to find that there is due to appellee upon the bond $500.00 with interest at six per cent from July 1, 1878, instead of $1515.00, and that appellant should be required to pay, instead of $2662.62, the sum of $540.98, with interest thereon at six per cent from March 11, 1879. If there shall be any surplus after paying the indebtedness on the bond, it should be applied upon the indebtedness on the notes.

Syllabus.

The judgments of the Appellate and Circuit courts are therefore reversed, except in the respects above indicated, and the cause is remanded to the Circuit Court for further proceedings in accordance with the views here expressed.

Judgment reversed in part and in part affirmed.

Mr. JUSTICE BAILEY, having heard this case in the Appellate Court, took no part in its decision here.

1. LIMITATION-act of 1839-color of title. A tax deed purporting to convey land to the grantee therein named, is good color of title.

2. SAME-as to vacant and unoccupied land. Where the holder of color of title, acquired in good faith, pays all the taxes legally assessed upou the land to which the color of title relates, for seven successive years, while it remains vacant and unoccupied, and then takes actual possession by enclosing the same with a fence, the bar of the statute will be complete, and the holder of such title may assert the same, either as a defense, or to regain possession when invaded.

3. EVIDENCE-payment of taxes-parol evidence. The payment of taxes may be proved by parol evidence. Tax receipts may be explained, and if a mistake has been made in the description of the land or in the name of the person who actually made the payment, resort may be had to parol evidence to rectify such mistake.

4. SAME—sufficiency of evidence-to show payment of taxes. To prove the payment of taxes for the years 1880 and 1881 by H. H. Gage, two tax receipts were given in evidence, that for the tax of 1880 reading, "Received of Asahel Gage, by H. H. Gage," and that for the taxes of 1881 reading, "Received of Asahel Gage," etc. Asahel Gage testified that he never paid any taxes on the property, and never had in his possession any tax receipts for taxes paid on the property; and H. H. Gage testified that he paid the taxes on the property from 1879 to 1886, both inclusive,that for the years 1880 and 1881 he paid the taxes, and that he had the tax receipts ever since their issue, but could not tell how the name of

Brief for the Appellant.

Asahel Gage appeared therein: Held, that the evidence showed that H. H. Gage paid the taxes for the two years named.

5. POSSESSION-what may constitute. It is not necessary that a man shall reside upon property in order to obtain or hold possession of it. Possession of land may be acquired and held in different modes.-by inclosure, by cultivation, by the erection of buildings or other improvements, or, in fact, by any use that clearly indicates an appropriation to the use of the person claiming to hold the property.

6. The holder of color of title in good faith, after the payment of all the taxes on the land for over seven successive years, fenced the same with a post and board fence, the fence being completed September 10, 1887. In the latter part of December, 1887, the former owner or his agent visited the property, and found most of the fence on the north and east sides of the lot gone, but on the south and west sides the fence was mainly standing as erected. The latter re-fenced the property, using that part of the fence and materials remaining, and supplying the balance: Held, that the act of re-fencing conferred no rights on the party, the original fences remaining being enough to notify him that the property had been reduced to possession, and that his entry was wrongful, and a trespass.

7. SAME-how possession may be acquired. The doctrine of this court is uniform, that a man can not take the law into his own hands, and regain by force a possession which he may be entitled to recover in an appropriate action.

8. The common law right to enter and use all necessary force to obtain possession from him who may wrongfully withhold it, has been taken away by our statute of forcible entry and detainer. Any entry is forcible, within the meaning of the statute, that is made against the will of the occupant.

9. CLOUD ON TITLE-of the character of complainant's possession. A claimant of the legal title to land can not maintain a bill in chancery to set aside an adverse claim as a cloud on his, when he obtains possession of the land forcibly and unlawfully. In equity, he will be treated as though out of possession. The case of Fort Dearborn Lodge v. Klein, 115 Ill. 177, does not conflict with the rule here announced.

APPEAL from the Superior Court of Cook county; the Hon. HENRY M. SHEPARD, Judge, presiding.

Mr. AUGUSTUS N. GAGE, for the appellant:

The taxes were paid by appellant under color of title to vacant property for the requisite length of time, and though the receipts for two of the years stated that the payment was

Opinion of the Court.

made by Asahel Gage by Henry H. Gage, and by Asahel Gage, the evidence showed that the payments were made, in fact, by Henry H. Gage, under his color of title, and this was sufficient to sustain his limitation. Rev. Stat. 1874, chap. 83, sec. 7; Cofield v. Furry, 19 Ill. 183; Darst v. Marshall, 20 id. 227; Rand v. Scofield, 43 id. 167; Elston v. Kennicott, 46 id. 187; Lyon v. Kain, 47 id. 200; Rawson v. Fox, 65 id. 200; Coleman v. Billings, 89 id. 183.

Plaintiff having taken possession under his limitation title, he must be treated as still in possession. Especially so as against the appellee, who has attempted to take possession by the commission of a trespass. Hale v. Gladfelder, 52 Ill. 91; McDuffee v. Sinnott, 119 id. 449.

Appellant having lawfully reduced the property to possession in July or August, 1887, no subsequent trespass by appellee could give him a standing to maintain a bill in equity. Comstock v. Henneberry, 66 Ill. 212; Hardin v. Jones, 86 id. 313.

Appellant has shown the requisite color of title in him by deed bearing date in 1877; that he has paid all taxes on the property from that time to 1886, being more than seven years; that the property was vacant all these years, and that after paying those taxes he took actual possession of the property. This constituted a good defense under the limitation laws of this State, and entitled him to ask affirmative relief of the court, in the premises.

Mr. H. S. MCCARTNEY, for the appellee.

Mr. CHIEF JUSTICE CRAIG delivered the opinion of the Court:

This was a bill in equity, brought by Thaddeus Hampton, in the Superior Court of Cook county, against Henry H. Gage, to set aside three tax deeds as clouds on the title to lots 36 and 37, in the west half of block 1, in a certain subdivision of a certain eighty-acre tract of land in Cook county. The first tax deed named in the bill was executed on the 10th day