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by taking possession of the land after the holder of the paramount legal title has filed his application to register the same.
On March 7, 1906, the appellee, John H. Woods, filed his application in the circuit court of Cook county to register his title to a lot in Norwood Park, alleging that the land was vacant and unoccupied, and that the appellants, Jacob Glos, Emma J. Glos and August A. Timke, trustee, claimed some interest therein by reason of tax deeds and other conveyances of the lot to them. On March 21, 1906, answers were filed by Jacob Glos and August A. Timke, trustee, denying that their claims or interests were invalid. for any reason. Replications were filed on March 28, 1906, and thereafter Jacob Glos took possession of the lot on July 12, 1906. The application was amended on April 23, 1909, by adding two parties defendant and correcting the description of the property, and Glos and Timke again answered with the same averments as before.
Jacob Glos had color of title acquired in good faith under two tax deeds and had paid all taxes and special assessments legally levied against the lot for the seven successive years from 1897 to 1903, inclusive, but had not taken possession of the lot when the application was filed and it was then vacant and unoccupied. The application was referred to an examiner of titles, who recommended the registration of the title and the reimbursement of the holders of the tax titles.
Section 7 of the act in regard to limitations, under which appellants claim, has been sustained as a limitation of the right to commence an action for the recovery of lands by enabling one who has complied with its provisions to defend his possession against the holder of the paramount title, and in order that the bar of the statute may become complete there must be a concurrence of claim and color of title acquired in good faith, payment of taxes for
seven successive years and actual taking possession of the premises. When the bar of the statute has become complete by the concurrence of these things it can be used as a defense to protect the possession against every one, and if the possession be invaded, even by the holder of the paramount title, it will enable the party to sue and recover his lost possession. (Paullin v. Hale, 40 Ill. 274; Hale v. Gladfelder, 52 id. 91; Gage v. Hampton, 127 id. 87; McCauley v. Mahon, 174 id. 384; Travers v. McElvain, 181 id. 382.) The beginning of a suit terminates the running of the Statute of Limitations. (Miller v. Pence, 132 Ill. 149; Chicago and Northwestern Railway Co. v. Jenkins, 103 id. 588; Converse v. Dunn, 166 id. 25.) Suit was begun for the registration of the title on March 7, 1906, and at that time the several things required to make the bar of the statute complete had not taken place, and Glos could not have set up the payment of taxes, alone, as a defense. He could not afterward perfect his claim under the statute. As was said in Converse v. Dunn, supra, it would avail an owner but little to show that he had title at the time of the commencement of his suit if the right of recovery upon such title could be defeated by the perfecting of title in the defendant after the beginning of the suit. The rule in equity that the chancellor will grant such relief as the nature of the case and the facts existing at the time of the decree require does not aid the appellants, for the reason that the running of the statute was arrested by filing the application, and at the time of the hearing and decree they had no rights under it.
The decree is affirmed.
Mr. JUSTICE VICKERS, dissenting.
THE DENISON COTTON MILL COMPANY, Appellee, vs. W. IRVING SCHERMERHORN et al. Appellants.
Opinion filed December 17, 1912-Rehearing denied Feb. 5, 1913.
I. APPEALS AND ERRORS—when a constitutional question is involved. An appeal from an order finding the defendants guilty of contempt for refusing to permit an examination of their books under an order of court is properly taken to the Supreme Court as involving a constitutional question, where one of the errors assigned is that the order violated the constitutional right of the defendants to be secure against unreasonable searches and seizures, and it is manifest if the order is illegal it is upon that ground.
2, EVIDENCE—materiality of evidence to be obtained from inspection of books need not appear from pleadings. To authorize the court, under section 9 of the Evidence act, to enter an order requiring either of the parties to produce for inspection books or writings in their possession or power which contain evidence pertinent to the issue, it is not essential that the materiality of the evidence shall appear from the pleadings, but it is sufficient if it appears from the affidavits filed in support of the motion.
3. SAME-how the rights of a party ordered to produce books are protected. The court will not require a party to produce books and papers for inspection unless it is made to appear that they contain evidence pertinent to the issue, and such party has a right to seal up and conceal such parts of the books as, according to the affidavit in support of the motion for the order, do not relate to the matters in question.
4. SAME an order to produce books may authorize taking of memoranda therefrom. An order, entered under section 9 of the Evidence act, requiring a party to produce books or papers in his possession or power containing evidence pertinent to the issue, may provide that memoranda may be taken from such books concerning the matters involved in the suit.
5. SAME merits of a trover case cannot be determined in ancillary proceeding to require production of books. In an action of trover, where it is claimed that the defendants have purchased materials stolen from the plaintiff, the merits of the case cannot be tried in the ancillary proceeding, under section 9 of the Evidence act, to require the defendants to produce books and papers for the inspection of the plaintiff.
6. SAME an order need not provide for inspection of books in presence of court. An order, entered under section 9 of the Evidence act, requiring the defendants to allow the plaintiff to inspect
certain books and papers, is not erroneous because it permits such inspection to take place at the office of the defendants and not in the presence of the court.
7. CONSTITUTIONAL LAW-Section 9 of the Evidence act is not unconstitutional. Section 9 of the Evidence act, authorizing the court, upon motion and for good cause shown, to require either party to produce for inspection books or papers in their possession or power containing evidence pertinent to the issue, is a valid, constitutional enactment.
8. CONTEMPT-when imprisonment until compliance with order is appropriate. Where the defendants to an action in trover refuse, without legal excuse, to obey a lawful order of the court requiring them to permit the plaintiff to inspect certain books and papers in their possession, an appropriate punishment for their contempt is commitment to jail until the order is complied with, as a fine or imprisonment for a definite term might not secure obedience to such order.
APPEAL from the Circuit Court of Cook county; the Hon. JOHN P. McGoORTY, Judge, presiding.
FREDERICK A. BROWN, and WILLIAM R. T. EWEN, JR., (RAYMOND S. PRUITT, of counsel,) for appellants.
ADAMS, BOBB & ADAMS, (G. L. WIRE, of counsel,) for appellee.
Mr. JUSTICE VICKERS delivered the opinion of the court: The Denison Cotton Mill Company brought an action of trover against the Schermerhorn Bros. Company in the circuit court of Cook county, alleging that the plaintiff had casually lost, and that the defendant had found, 175,000 pounds of cotton duck, 10,000 pounds of cotton sheeting and 12,000 pounds of cotton bagging. To this declaration defendant filed the general issue. While the action was pending plaintiff filed a motion for and procured an order permitting an examination of the books and memoranda in the office of defendant supposed to contain evidence material to the issues in the action of trover. Defendant re257 - 9
sisted the application for the order for the inspection of its books and excepted to the entry of the same. W. Irving Schermerhorn and Lucas R. Schermerhorn, co-partners doing business as Schermerhorn Bros. Company, were cited to show cause why they should not be punished for contempt of court for their refusal to permit an examination of their books. A hearing was had resulting in a finding that the defendants were guilty of contempt and an order committing them to the common jail of Cook county until they complied with the order of the court or until they were otherwise discharged according to law. This appeal is prosecuted for the purpose of obtaining a review of the order finding the defendants guilty and committing them to jail.
Appellants prayed an appeal to the Appellate Court. The trial court denied an appeal to the Appellate Court but granted an appeal to this court. Appellants assign error upon the refusal of the court to grant the appeal to the Appellate Court and argue the question of jurisdiction. One of the errors assigned is, that the order for the inspection of appellants' books is in violation of their property and constitutional rights. Throughout this entire proceeding the appellants have strenuously contended that the order for the inspection of their books was an invasion of their right, under the constitution, to be secure against unreasonable searches and seizures of their private books and papers. Manifestly, if the order of the court below is illegal for any reason it is because it invades a constitutional right of appellants. Whether, under the facts before the court, the order for inspection is a violation of the appellants' constitutional rights, so far involves a construction of the constitution as to give this court jurisdiction by a direct appeal. The case of Lester v. People, 150 Ill. 408, is an authority which directly decides the jurisdictional question, and is in all essential respects similar to the case at bar. The jurisdictional question is discussed