Kirby v. Kirby

86 N.E. 259, 236 Ill. 255

• Court: Illinois Supreme Court
• Decided: October 26, 1908
• Status: Published

Opinion

Mr. Justice Farmer

delivered the opinion of the court:

The proof shows the conveyance, by deeds, of two of the tracts of land described to Joshua Kirby in March, 1874, and of the other one in February, 1875. December 23, 1876, Joshua Kirby and his wife, Mary E., conveyed the premises to Peter Arie, and on the same day Peter Arie and wife conveyed them back to Mary E. Kirby. The proof does not disclose any reason for those deeds having been executed. On the first day of October, 1877, the records of the recorder’s office show a deed bearing that date from Joshua Kirby and wife, Mary E., to John J. Kirby was filed and recorded. The record shows the land conveyed by this deed was the north-west quarter of the south-east quarter and the north-east quarter of the south-west quarter. The north-west quarter of the south-west quarter, which is a part of the land in controversy, is not mentioned in said record. What is known as an entry book in the recorder’s office contains a memorandum of the names of the grantor and the grantee, the date of the instrument, and of its filing October I,. 1877, and the property described as the northwest quarter of the south-east quarter and the north-east quarter of the south-west quarter, and that the deed was delivered to Joshua Kirby February 13, 1882. The book known as a grantors’ index contains substantially the same memoranda as the entry book, except it does not show when and to whom the deed was delivered, and the land conveyed is described in that book the same as in the record and the entry book. The grantees’ index is the same as the grantors’ index, except that the names of the grantor and grantee are reversed in their order, and it described the land conveyed the same as the record, the entry book and the grantors’ index. There is a notation on the margin of the record of the deed which read's as follows: “See 41 of deeds for re-recording to correct description.—Filed Feb. 15, 1882.” On page 470 of the same record is the record of a deed dated October 1, 1877, signed by Mary E. Kirby and Joshua Kirby, purporting to convey to John J. Kirby the north-west quarter of the south-east quarter and the north half of the south-west quarter. It will be seen this includes the forty acres omitted from the description in the record and books previously mentioned. ' On the 13th of February, 1882, which is the same date the entry book shows the deed was delivered to Joshua Kirby, John J. Kirby executed a deed to Joshua Kirby purporting to convey to him the north-west quarter of the south-east quarter and the north half of the south-west quarter. This deed was filed for record February 27, 1882. On January 29, 1902, Joshua Kirby and wife conveyed all of said premises to a man by the name of Larry, and August 5 of the same year Larry conveyed said premises to Joshua and Frances S. Kirby, his wife. It is by virtue of this conveyance that the widow claims to own the undivided one-half in fee.

Appellants contend that the deed from Mary E. Kirby and Joshua Kirby to John J. Kirby was never delivered; that it was made and left for record without the knowledge and consent of the grantee, and that said grantee was ignorant of the fact that it had been made and left for record until long after the death of Mary E. Kirby. John J. Kirby was a witness in the case and testified that Mary E. Kirby never said anything to him about the deed, and that his brother, Joshua, never mentioned it to him until after the death of Mary E., when he told him the deed had been made and asked if he would convey it back to him; that he replied to his brother that he would do so,—that it was nothing to him; that when his brother brought a deed to him to sign, he signed and acknowledged it at his brother’s request. He further testified he never saw the deed made by Mary E. and Joshua Kirby to him; that he never heard anything about any mistake in the description of the land or of the re-filing or the re-recording of the deed. It is apparent that the conveyance to John J. Kirby was never intended to vest any beneficial interest to the land in him. The recording of a deed by the grantor has been held to be prima facie evidence of delivery. But this is subject to be rebutted, and this was done by the testimony of John J. Kirby. He was never in possession of the land under the conveyance and never received any benefit from it. Mary E. Kirby and Joshua Kirby remained in control and possession of the land until the death of Mrs. Kirby, and Joshua continued in such possession until the conveyance to him from his brother, John J. In Sullivan v. Eddy, 154 Ill. 199, this court said (p. 208) : “When the deed is for his [the grantee’s] benefit, under certain circumstances acceptance may be presumed, but not necessarily. Even in the cases which treat the act of recording as prima facie evidence of a delivery, it is held that such evidence is successfully rebutted by showing that the conveyance was intended to confer no benefit upon the grantee.” In Slattery v. Keefe, 201 Ill. 483, we said (p. 486) : “The execution and recording of a deed by the grantor is only prima facie evidence of a delivery, and liable to be rebutted by showing, among other things, that the conveyance was intended to confer no benefit upon the grantee.” Other cases will be found cited in the two cases referred to, which sustain the contention of the appellants that the deed to John J. Kirby vested no title or interest in him.

The appellees contend that, even if this be true, Joshua Kirby acquired title by limitation, and they rely both upon twenty years’ adverse possession and also seven years’ possession under claim and color of title obtained in good faith. We are of opinion their title cannot be sustained upon either of these claims. It is not shown by the evidence what reasons Mary E. Kirby and Joshua Kirby had for making the deed to John J. Kirby nor the purposes sought to be accomplished by it. Whatever the motive may have been, under the facts as disclosed by the evidence in this record the grantee in that deed acquired no interest in the land but the equitable title remained in Mary E. Kirby, and the deed from John J. Kirby, after her death, to Joshua Kirby invested in him no title to or -interest in the land. As the surviving husband of Mary E. Kirby he was entitled to an estate of homestead and dower in said premises, and this was the extent of his interest in them. The proof shows he continued to occupy the lands and receive the rents and profits therefrom until his death, which occurred in 1906. During this time he made some repairs to the improvements on the land and paid the taxes thereon. There is’ no proof in the record that the appellants had any actual knowledge of the conveyance from their mother to John J. Kirby nor of any of the conveyances made subsequent to that time. After their mother’s death they resided with their grandfather until they were about fifteen years of age, when they went to reside with their father on the land in controversy. The daughter, a few years later, married a man named Trickle, and Ellsworth continued to reside with his father. For a number of years he farmed a part of the land, his father furnishing teams and implements and Ellsworth receiving one-fourth of the crops he raised. In addition to occupying the premises and making some repairs to the improvements thereon, Joshua Kirby placed a number of mortgages on the land during his lifetime. In 1902, when the conveyance was made by him and his wife, Frances S., to Larry, it appears that it was made in a trade with Larry for lands in Jefferson county, Illinois. This trade after-wards was abandoned, and Larry conveyed the lands, as we have above stated, to Joshua and Frances S. Kirby. Before making this conveyance, and while he had the title to the land, Larry placed a mortgage on it for $8000, and when he conveyed it back to the Kirbys they mortgaged it for the same amount for money to pay off the mortgage Larry had made on the premises. The Kirbys made two mortgages,—one for $6000 and one for $2000,—and these are the mortgages held by Trevett and the Mutual Benefit Life Insurance Company. The acts of Joshua Kirby in retaining possession of the land, receiving the rents and profits therefrom, mortgaging the premises and proposing to trade them for other lands are acts relied upon by appellees to establish their claim that he held the land adversely to appellants. There is no proof in the record that appellants had any actual knowledge of any of the mortgages or of the proposed trade with Larry.

The master permitted appellants, over the objections of appellees, to testify as witnesses in the case. So far as we can find, no ruling of the court was made upon their competency. They testified to a number of statements made by their father in his lifetime, to the effect that the land was their mother’s and that they would get it eventually, and gave their reasons for not asserting their right during the lifetime of their father. They also testified of their ignorance of any claim of their father to be the owner of the land. In our opinion they were not competent witnesses against the children of their father by Frances S. Kirby .and his first wife, but they were competent as against said Frances S. Kirby. She neither sued nor defended as heir. A Mr. Parsons and his wife testified that after the death of Mary E. Kirby Joshua Kirby told them she owned forty acres of the land. Albert Kirby, a brother of Joshua, testified that he heard Joshua, on Saturday before he died, tell Ellsworth the farm was in his mother’s name. Alex Funkhouser testified he had known Joshua Kirby since 1859 and knew his wife Mary E., and that he was in the office of Earry & Earry, who were in the real estate' business in Champaign, and met Joshua Kirby there; that they were trying to make some kind of settlement about a land trade; that Joshua Kirby had tried to sell or trade his land to Earry & Earry, but there appeared to be some dissatisfaction and that Kirby could not malee a deed; .that Kirby said to the witness, “You know why I can’t,” and the witness replied, “Is that the trouble?” and that what the witness referred to was the fact that the deed had been made to Mary E. Kirby.

We do not think, under the circumstances of this case and the relation of the parties to each other, that appellees have established title in Joshua Kirby by twenty years’ adverse possession. As the surviving husband of Mary E. Kirby, Joshua Kirby had an.estate of homestead in the premises and had a right to reside thereon. He was also entitled to dower in the residue of the land. While his dower was never assigned, yet the fact that he had a right of dower and homestead in the premises, and the further fact that the owners of the fee.were his children, would require acts on his part of the most unequivocal character to render this possession adverse to his children. In Zirngibl v. Calumet Dock Co. 157 Ill. 430, it was held that the adverse possession required to constitute a bar to the asr sertion of the legal title by the owner must be “hostile or adverse, actual, visible, notorious and exclusive, continuous, and under a claim or color of title.” The same rule was announced in Downing v. Mayes, 153 Ill. 330, and many other cases to be found in our Reports. From the earliest decision in this State to the present time it has been held that a party claiming title by adverse possession must prove his possession was adverse to the true owner, by clear and positive evidence. This cannot be established by inference, but the proof must show clearly that the party in possession claimed the land as his own, openly and exclusively. In White v. Harris, 206 Ill. 584, this court said' (p. 592) : “ ‘A party claiming title by adverse possession always claims in derogation.of the right of the real owner. He admits that the legal title is in another. He rests his claim, not upon a title in himself as the true owner, but upon holding adversely to the true owner for the period prescribed by the Statute of Limitations. Claiming a benefit from his own wrong, his acts are to be construed strictly.’ (Cornelius v. Giberson, 25 N. J. L. 31.) ‘Adverse possession cannot be made out by inference or implication, for the presumptions are all in favor of the true owner, and' the proof to establish it must be strict, clear, positive and unequivocal.’ (Zirngibl v. Calumet Dock Co. 157 Ill. 430.) The rule is, that every presumption will be made in favor of the holder of the legal title, and no presumption will be made in favor of the holder of color of title only.”

In Hunter v. Dennis, 112 Ill. 568, George Dennis, owner of the land, had in his lifetime conveyed it by deed to Black to secure a loan. He died before paying the loan and securing to himself a conveyance of the land. After his death his widow paid the loan and Black made her a deed conveying to her the premises. The widow had one child, a daughter, by George Dennis, who was a minor when her father died. The widow and daughter lived upon the premises until the daughter’s marriage, and after the rriarriage the daughter and husband continued to live with the widow until the daughter’s death, in 1880. She left five children surviving her. ' The deed from Black to the widow .of George Dennis was made in 1854, and in 1882 the children of the daughter, as the legal heirs of George Dennis, deceased, filed a bill in chancery to have the deed from their grandfather to Black declared a mortgage, and for partition of the land, and for an accounting. The widow relied for her defense upon the Statute of Bimitations. The trial court dismissed the bill filed by the heirs, and this decree was reversed, this court holding that as the' widow had a homestead and dower right in the premises, although her dower had not been assigned, her possession was not adverse.

In DeWitt v. Shea, 203 Ill. 393, the widow of a deceased owner occupied and lived upon lands for more than forty years after the death of her husband, and it was held this possession was not adverse.

In Musham v. Musham, 87 Ill. 80, and Riggs v. Girard, 133 id. 619, it was held that the occupation by a widow of lands of her deceased husband in which she had right of homestead and dower, however long continued, could not be regarded as adverse to the heirs. The statute under which the dower right accrued in these cases gave the widow the right to the possession of the dwelling house and the plantation thereto belonging until the assignment of her dower. This was called the widow’s quarantine, and was abolished by the act of 1874.

In Reuter v. Stuckart, 181 Ill. 529, a bill was filed by a surviving husband for the assignment of homestead and dower in real estate alleged to have been owned by complainant’s deceased wife at the time of her death. The deceased wife of complainant was a widow when he married her, and her former husband, by whom she had five children, was the owner of the premises, and at the time of his death, December 29, 1874, the family resided on the premises in controversy. The bill alleged that complainant’s deceased wife had been in the adverse possession of the premises continuously since 1876 to her death, in 1897, and that during all that period the heirs of the former husband of complainant’s wife had done nothing whatever to assert title to the land. The court said in that case (p. 543 ) : “We have held that the possession by the widow, under her statutory right, of the dwelling house and land is not adverse to the title of the heirs but is entirely consistent and in harmony with such title. (Citing cases.) It follows that in this case Mrs. Reuter acquired no title by an adverse possession of twenty years.” See, also, 1 Cyc. 1051.

At the time of the death of Mary E. Kirby, appellant Ellsworth Kirby was less than two years old and Dora Trickle less than one year old. They were taken by their grandparents and resided with them until after their father’s marriage to the present widow, and when they were about fifteen years of age they went to reside with their father. No guardian appears to have been appointed for them. There is nothing in this record to show that there ever existed any other than affectionate and filial relations between appellants and their father. Until they were of age they could not have assigned dower to their father except by a proceeding in court by guardian or next friend.' If during their minority, and also after becoming of age, they were willing their father should occupy and receive the income from the land rather than embarrass him or disturb the family relations existing by dispossessing him of part of the premises, this alone would not defeat their right to claim the land after their father’s death. So far as this record shows, the failure of appellants to assert their title before their father’s death was on account of their relation to and their regard for him. The only thing the father ever did to indicate that he claimed to be the owner of the land was the procuring the deed from John J. Kirby to be made to himself and subsequently mortgaging the premises and endeavoring to trade them for other lands. As we have before stated, there is no evidence that appellants ever had any actual knowledge of these facts, and we do not think it can be held that they were bound to know of these acts of their father because the conveyances were recorded. All the verbal declarations proven to have been made by Joshua Kirby prior to his death tend to show that he recognized that his deceased wife, Mary E., was the owner of a part or all of the land, and his last declaration on this subject proven was made only a few days before his death. While the naked legal title of record appeared to be in Joshua Kirby, upon the strength of which he was able to procure credit by mortgaging the land, he was bound to know that the equitable title never passed out of Mary E. Kirby by the conveyance to John J. Kirby, and that after her death John J. Kirby could not convey the title to him. There was no proof that Joshua Kirby’s possession was hostile in its inception, and nothing was done by him upon the death of his wife to indicate any change in the character of his possession. So far as shown he continued in possession, neither doing nor saying anything, aside.from the conveyances mentioned, to give any notice that he claimed the land adversely to his children, or that he claimed possession by any other right than that of surviving husband of his deceased wife. In the absence of clear and positive proof to the contrary, in view of the relations of the parties, his possession of that portion of the premises not included in the homestead would be presumed to be permissive and not adverse, (i Am. & Eng. Ency. of Law,—2d ed.—821.) “And where the possession had been consistent with or in submission to the title of the real owner, nothing but a clear, unequivocal and notorious disclaimer and disavowal of the title of such owner will render the possession, however long continued, adverse.” (Rigg v. Cook, 4 Gilm. 336.) In such cases, notice of the adverse claim would have to be actual or the hostile character of the possession so manifest and notorious that notice would be presumed, and the burden is on the party alleging the adverse possession to prove it. The proof further shows, as we have seen, that Joshua Kirby made declarations inconsistent with a claim of adverse possession. Most of such declarations proven, it is true, were made to and proven by appellants, whose testimony is only competent to be considered against the claim of Frances S. Kirby, but there was proof of declarations by Joshua Kirby inconsistent with the claim of adverse possession, made by other witnesses. It may be admitted it was slight proof, but as it tended to show that Joshua Kirby recognized the titlo of appellants and that his possession was subordinate thereto, it is entitled to greater weight than would be the case if the parties occupied different relations toward each other. As to the interest claimed by Frances S. Kirby, the proof is abundant and conclusive that Joshua Kirby made frequent declarations that he did not claim to own the land. Such declarations are competent evidence and prevent the running of the statute. (Beecher v. Parmele, 31 Am. Dec. 633; Deming v. Carrington, 30 id. 591.) The intention with which possession is taken or held is a material factor in determining whether it is adverse. There must be an intention to claim title as owner, in derogation of the rights of the true owner. McNamara v. Seaton, 82 Ill. 498; Ewing v. Burnett, 11 Pet. 41; 1 Am. & Eng. Ency. of Law, (2d ed.) 798.

We think the proof warrants the conclusion that the deed from Mar}' E. and Joshua Kirby to John J. Kirby described only two of the tracts of land in controversy and that the north-west quarter of the south-west quarter was omitted from the description contained in said deed, and that the deed was altered after it was recorded, and after the death of Mary E. Kirby, so as to include the last mentioned tract of land, and after being so altered was rerecorded. To acquire title by adverse possession it is not necessary that the possession and claim of ownership be made under any muniment of title, but there must be a claim of ownership and such acts under possession as to show that the party in possession in fact claimed title to the land. It may be that the facts proven in this case would warrant the conclusion, as against anybody else than his children-who claim the title, that his possession was adverse, but as against his children, who own the fee subject to his homestead and dower, his possession cannot be held to be adverse.

Neither can title in Joshua Kirby be sustained under section 6 of the Statute of Limitations. That section requires possession, under claim and color of title made in good faith, for seven successive years and the payment of taxes on the premises during that period. It is an essential element of title under that section that it should have been acquired in good faith. The holder of the title need not be ignorant of the fact that someone else claims title to the premises through some other source, but it is necessary that his title, from whatever source derived, should be obtained •in good faith. What we have already said conclusively shows that the paper title by virtue of which Joshua Kirby claimed to own the land was not obtained by him in good faith.

Appellants do not contest the right of the mortgagees, made parties defendant to this proceeding, to -have their mortgage liens preserved and satisfied out of the premises, but concede that said mortgagees are entitled to that relief.

The decree of the circuit court is therefore reversed and the cause remanded, with directions to that court to deny the relief prayed in the original bill and to enter a decree in favor of the complainants in the cross-bill, in accordance with the views herein expressed.

Reversed and remanded, with directions.