Ater v. Smith

91 N.E. 776, 245 Ill. 57

Opinion

Mr. Chief Justice Farmer

delivered the opinion of the court:

From the attitude the parties have finally assumed in this litigation, it appears that this suit has resolved itself into a controversy between three surviving daughters and the descendants of a deceased daughter of James Ater on the one side, and the remaining surviving daughter and those claiming under the four deceased sons of James Ater on the other side.

It is conceded by all the parties to this suit that there was never a valid delivery of the deeds executed by James Ater to the grantees named therein. After the death of James Ater his oldest son, Franklin Ater, received the deeds from T. A. Pipher, in whose custody they had been since their execution, and they were afterwards caused to be recorded, presumably by Franklin Ater, although there is no direct proof to this effect. After the deeds were recorded, each of the various grantees named therein entered into the possession of the respective tract of land described in his or her deed. In what manner the deeds came into the possession of all the children does not appear. Mrs. Vent testified she received hers from her mother, and Mrs. Smith testified she received hers from her mother or brother, Franklin Ater.

Plaintiffs in error contend that the children of James Ater did not take possession of their respective tracts of land by' virtue of any parol agreement between themselves but took possession by virtue of the deeds made by their father; that they supposed the deeds to be valid, and understood them as conveying to each of said children a life estate and not the fee simple title. Upon this basis it is argued that Thomas Ater’s possession of the land in controversy was not hostile, in its inception, to the claim of title of plaintiffs in error as remainder-men, and did not become hostile to them at any time during the life of Thomas Ater. It is not at all probable that in the absence of the deeds of James Ater to his children they would have agreed among themselves upon a partition of the lands such as was made by the deeds. Although said deeds were invalid as a conveyance of title, they were an expression of the desire of James Ater as to the particular tract and number of acres that he desired each of his children to have of the ten hundred and forty acres of land purported to be conveyed to them by said deeds. If this division was agreed to, accepted and acquiesced in by the children of James Ater after his death, it would become valid and binding upon them and their heirs; and such agreement and acceptance need not be proven by express words of the parties, but may be inferred from the acts and conduct of the parties with reference to the respective tracts each took possession of. At the time of the death of James Ater, in 1864, two of his children,—a daughter and one son, Aaron,—were minors. The daughter attained her majority within a year after her father’s death, and the son, Aaron, in 1870. Apparently the adult children took possession of the respective tracts of land purporting to have been conveyed to them by their father shortly after his death, and it is stipulated that at least as early as 1870 each of the children of James Ater took possession of the respective tracts of land purporting to have been conveyed to them by deeds from their father, and thereafter paid all taxes and insured the buildings on their respective tracts in their own names. There was no direct proof that Thomas Ater ever said or did anything indicating that he claimed only a life estate in the one hundred and sixty acres of land in controversy. There was testimony, of a general character, of two daughters of James Ater and two daughters of a deceased daughter of said James Ater, whose competency as witnesses was not objected to, that the children of said James Ater understood the deeds from their father to convey to them life estates in their respective tracts. A son-in-law of Franklin Ater testified that he learned his father-in-law had a life estate in his tract of land; that he thought he learned it from his father-in-law, but was not positive. The witness testified he never heard of any of the other brothers or sisters claiming any interest in Franklin Ater’s one hundred and sixty acres. Franklin Ater died testate in June, 1905, and the witness was appointed executor of his will. John Kirby testified that in 1867 or 1868 he was breaking prairie for the Ater boys and boarding at the house of John Ater; that he understood from a conversation with John Ater that the land was conveyed by James Ater to his children for their lifetime and at their death was to go to their children.

Plaintiffs in error contend that the above testimony completely rebuts the finding in the decree that shortly after the death of James Ater each of his children “took and held actual, open, notorious, exclusive and adverse possession of the said several tracts so taken possession and charge of by each, respectively, as aforesaid, under a claim of ownership.” This might be true if the testimony above referred to were the only evidence in the record .tending to show the character of the possession of the children of James Ater and the interest or estate in the respective tracts claimed to be owned by them. In addition to the testimony referred to, the evidence shows that each of the children of James Ater, after taking possession of their respective tracts of land, exercised the same authority and control over it as if they owned it in fee, and that they, in fact, did claim to own it in fee. Some, if not all, of said children erected permanent and valuable improvements on their respective tracts of land and insured the buildings in their own names, representing and stating to the insurance companies in their applications for insurance that they were owners in fee of the lands. Thomas Ater in 1903 built a residence on the one hundred and sixty acres of land in controversy at a cost of from $2500 to $3000. He caused it to be insured September 17, 1903, and stated in his application for insurance that he owned the land in fee simple. In 1879 Jane Baker and husband conveyed the eighty-acre tract Jane Baker had possessed since her father’s death to James P. Ownby and received the entire consideration therefor. All the other children of James Ater signed the deed with Jane Baker and husband, except Franklin. Mrs. Smith and Mrs. Vent, daughters of James Ater and sisters of Jane Baker, testified they signed the deed with Jane Baker and husband in order to make the title clear; that Jane Baker was forty-seven years old and had no children, and the witnesses considered they might have an interest in the land and therefore joined in the deed to make the title good in the purchaser, but none of the children except Jane Baker claimed or received any part of the consideration for the land. They testified that Franklin Ater did not like Jane Baker’s husband and said he wouldn’t sign his children’s rights away for that reason. Subsequently, and after the death of Mrs. Baker’s husband, Franklin Ater executed a quit-claim deed to the purchaser. John S. Ater died in November, 1903. In May prior to his death he made a trust deed conveying the one hundred and sixty acres of land he was in possession of to a trustee, the rents and profits after the death of John S. Ater to be paid to his widow, if she survived him, during her lifetime, and at her death the trustee was authorized and directed to sell said one hundred and sixty acre tract and distribute the proceeds among the brothers and sisters and children of deceased brothers and sisters of said John S. Ater. Franklin Ater died testate in June, 1905, leaving children surviving him. He appears to have disposed of all his estate and property by his will. The will was offered in evidence on the trial but was objected to by plaintiffs in error as being incompetent and immaterial. It was agreed between the parties that the will had been duly admitted to probate, but the record does not show any ruling of the court on the objection to its admission in evidence and we do not find it in the record, and therefore do not know to whom the land was devised. Aaron Ater died intestate October 30, 1905, leaving several children surviving him. One of his daughters administered upon his estate, and testified her father resided on the one hundred and sixty acres of land described in the deed of his father to him until his death; that during his lifetime he tiled the land, planted an orchard on it and built a barn and a seven-room two-story house thereon. He insured the buildings for $1400, and represented to the insurance company that he was the sole and unconditional owner in fee of the land. These indisputable facts tend to show that the four sons of James Ater did not claim possession as mere life tenants, but that they claimed to be owners in fee simple of the tracts of land they were, respectively, in possession of, and this testimony is inconsistent with the -testimony of the witnesses referred to, that they understood that the children of James Ater claimed a life estate, only, in their respective tracts.

Plaintiffs in error contend that the action of the other children of James Ater in uniting with Jane Baker in the conveyance of her eighty-acre tract is an important circumstance showing they claimed an interest in the land. A parol partition, and possession taken thereunder, vests the equitable title, but the legal title remains in the person or persons it was in before the parol partition was made. Conveyances in such cases are necessary to Vest the legal title. Upon the death-of James Ater the legal title to the land vested in his children, and after parol partition between themselves they became severally vested with the equitable title to their respective tracts, but in order to make title to a purchaser from one of them 'it was necessary that all should join in the conveyance to him. This is the more reasonable explanation of why the brothers and sisters of Jane Baker signed the deed with her. Jane Baker . was forty-seven years old and had no children, and her other brothers and sisters made no claim to any part of the consideration paid for the land, but permitted and consented to Jane Baker and husband receiving the entire price paid for it. Their signing the deed is not inconsistent with Jane Baker’s claim of ownership in fee, and permitting her to receive the entire consideration for the conveyance would seem to be a recognition of such ownership in her. If Franklin Ater, because of his dislike of Jane Baker’s husband, refused for a time to join in the conveyance because he thought his children might have an interest in the land, his conduct in this respect was inconsistent with his act in disposing of his land by will. His possession and title were of the same nature and character as those of his sister, Jane Baker, and if he owned the fee in his land she must have owned the fee in hers. It is also worthy of note that while John S. Ater disposed of the fee in his one hundred and sixty acres by deed of trust executed in May, 1903, and died in November following,' up to the time this litigation was begun the validity of the trust deed and the right of John S. Ater to dispose of the fee appears not to have been questioned. We are of opinion, therefore, that it cannot be said the evidence did not warrant the chancellor in finding that the possession of the several tracts by the respective parties was open, notorious, exclusive, adverse and under claim of ownership.

It is further contended by plaintiffs in error that whatever may have been the character of the possession and claim of title of the respective parties, it was based on the understanding and belief that it was acquired under the deeds made by James Ater without any knowledge that they were invalid because not delivered by or under authority of the grantor. They all knew that the deeds were never delivered to them until after the death of their father. Pipher testified he told Franklin Ater, at the time he delivered the deeds to him, what his father’s instructions were at the time they were executed; that the deeds were not his, Pipher’s; that he wanted to deliver them to somebody and that Franklin was the proper person to receive them. There is no proof Franklin Ater ever told anyone what Pipher said his instructions were from James Ater about the delivery of the deeds, but they were, very soon after Franklin Ater received them, recorded and delivered to the respective parties. Franklin Ater was the oldest son of James Ater and administered upon his father’s estate.

Plaintiffs in error explain their delay in asserting the rights they now claim under their amended cross-bill, on the ground that they had no knowledge of the invalidity of the deeds made by James Ater until the testimony was being taken before the master after this litigation was begun; that prior to that time they had no knowledge that the deeds had never been delivered and believed them to be valid. It is not so alleged in the cross-bill, but it is argued in the brief of plaintiffs in error that Franklin Ater occupied a fiduciary relation toward his brothers and sisters and that they had a right to rely on the validity of the deeds, and that Franklin Ater was guilty of a fraud in not disclosing to them the circumstances under which the deeds were procured and delivered to thém. One of the daughters, Mrs. Vent, testified she knew of the deeds being prepared by Mr. Pipher at the time and that he was to hold them until her father came or sent for them. Another daughter, Mrs. Smith, testified she knew of Mr. Pipher coming to her father’s house and preparing some deeds but could not remember whether he took them away with him or not. All of the children knew the deeds were recorded after their father’s death and that they received them after they were recorded, without any explanation of the authority by which they were recorded and delivered after the death of the grantor. They accepted them without question and took possession of their respective tracts of land.

While the general rule is, that to charge a party with laches in the assertion of an alleged right it is essential that he should have knowledge of the facts upon which he bases his claim, yet if the circumstances were such as should have induced inquiry, and the means of ascertaining the truth were readily available upon such inquiry but the party neglects to make it, he will be chargeable with laches the same as if he had known the facts. The rule is the same where ignorance of the facts, or concealment of them by one whose duty it was to disclose them, is relied on to arrest the running of the Statute of Limitations. Upon this subject the Supreme Court of the United States, in Wood v. Carpenter, 101 U. S. 135, quoted with approval from Kennedy v. Greene, 3 Myl. & K. 722 : “Whatever is notice enough to excite attention and put the party on his guard and call for inquiry is notice of everything to which such inquiry might have led. When a person has sufficient information to lead him to a fact he shall be deemed conversant of it.” In the same case the court also quoted from Angelí on Limitations: “The presumption is, that if the party affected by any fraudulent transaction or management might, with ordinary care and attention, have seasonably detected it, he seasonably had actual knowledge of it.” The same court said in Johnston v. Standard Mining Co. 148 U. S. 360: “The law is well settled that where the question of laches is in issue, the plaintiff is chargeable with such knowledge as he might have obtained upon inquiry, provided the facts already known by him were such as to put upon a man of ordinary intelligence the duty of inquiry.” “And where the question of laches is in issue, the plaintiff is also chargeable with such knowledge as he might have obtained upon inquiry, provided the facts already known by him were such as to put a man of ordinary prudence upon inquiry.” (18 Am. & Eng. Ency. of Law,—2d ed.—114.)

We are of opinion that the circumstances under which the deeds from James Ater to his children were delivered were of such character as to have reasonably imposed upon them the duty of inquiry. Mrs. Vent knew of the making of the deeds at the time and of her father’s instructions to the draftsman, Mr. Pipher. Mrs. Smith knew of the" making of the deeds at the time they were made. All of them knew their father died two days after the deeds bore date and that they were not filed for record until after his death. Mr. Pipher, who prepared and took the acknowledgments of the deeds, lived near and was easily accessible to all of the parties. Inquiry could have been made of him without inconvenience. It apparently was not made, and now, after a lapse of more than forty years, a court of equity is asked by the amended cross-bill to partition the land among the heirs of James Ater, deceased, as intestate estate, without regard to the deeds or the character of the possession of the parties during that long period of years, and to require an accounting of rents and profits. It would be difficult, if not impossible, to preserve the equitable rights and interests of all the parties and do justice between them if a decree should be entered in accordance with the prayer of the cross-bill. This, alone, would not justify denying the cross-complainants’ right to the relief prayed, but their delay in asserting their rig'ht for so long a period of years, during all of which time the means of knowledge of the facts were easily accessible and the circumstances were such as to put them on inquiry, places them in a position where they are not entitled to the relief prayed in a court of equity. “When the delay is of such a nature as to prevent substantial justice between the parties, the courts are ready to declare that the remedy sought is inequitable and must be refused.” (18 Am. & Eng. Ency. of Law,—2d ed.—100.)

We are of opinion the decree in this case does substantial justice and that there is no error in the record that would justify its reversal. It is therefore affirmed.

Decree affirmed.