Kotz v. Belz

53 N.E. 367, 178 Ill. 434

• Court: Illinois Supreme Court
• Decided: February 17, 1899
• Status: Published

Opinion

Mr. Justice Craig

delivered the opinion of the court:

Appellants insist that the decree of the circuit court is not sustained by the evidence. That decree found the equities of the case with the cross-complainant, Veronica Belz, and that partition should be made among the heirs-at-law of Frances Weber, deceased.

First—Did John E. Weber die testate? The complainant in the original bill, Louis P. Kotz, alleges that John E. Weber died intestate, while all the other appellants except Louis P. Kotz charge in their answers to the cross-bill that John E. Weber died leaving a last will and testament. To sustain the cross-bill defendants called Henry H. Handy as a witness. He testified he had been an abstracter in the city of Chicago for thirty-seven years, and the custodian of all the abstract books saved from destruction in the great Chicago fire in 1871. He stated there were minutes upon the books of original entry that the estate of John E. Weber was indexed in the estate book of Chase Bros, as pending in the county court of Cook county at the time of the fire; that in other books of original entry of Chase Bros, it appeared that the will of John E. Wéber, as document No. 76,413, was recorded in the recorder’s office; that by the books of Jones & Sellers, another abstract firm, the will of John E. Weber, dated January 27,1864, was recorded February 24, 1864, in volume 269, page 32, in the recorder’s office of Cook county, as document No. 76,413, thus supplementing and confirming the memoranda taken from the books of Chase Bros. The evidence further shows that John E. Weber died February 18, 1864; that the will was made January 27, 1864,—about three weeks before his death,—and was recorded February 24, which, taken in connection with the estate book of Chase Bros., can lead to no other reasonable conclusion than that the estate of Weber was pending in the county court of Cook county, and that it must have been probated in the county court and a certified copy recorded in the recorder’s office of Cook county.

Sections 28 and 24 of chapter 116, (3 Starr & Curtis’ Stat. p. 3360,) entitled “Lost or Destroyed Records,” provide, in brief, that upon the trial of any suit or proceeding pending in any court of this State, when it shall appear orally in court or by affidavit that the original of any deed or other instrument in writing is lost or destroyed, etc., the court shall receive as evidence any copy, extracts or minutes from such destroyed records or from the original thereof. The witness explained the abbreviations and dates, their meaning, etc. This kind of testimony was properly admitted. This court said in Converse v. Wead, 142 Ill. 132: “A witness who was familiar with the system of entries and making of abstracts by the abstract makers, and knew their rules and had worked with their men before the fire, and had assisted them daily in taking off minutes of the deeds from the records, swore as to these abbreviations,” etc. In Smith v. Stevens, 82 Ill. 554, this court said with reference to the Burnt Records act: “The condition of property owners in Chicago after the great fire of October, 1871, was appalling, demanding legislative interference. A great evil had befallen them, which this act was designed to remedy. It is emphatically a remedial act,' and in accordance with a well established canon it must receive a liberal construction, and made to apply to all cases which, by a fair construction of its terms, it can be made to reach.” Certainly a will relating to the title to real estate must be held to come within the scope of this remedial statute.

Another witness, Fernando Jones, who had been engaged in the business of making abstracts of title to real estate in Cook county forty years, and prior to October, 1871, under the name of Fernando Jones & Co., and after-wards under the name of Jones & Sellers, testified he knew John E. Weber and remembered -his sickness and death; that he saw him during" his last illness, and that there was an estate of John E. Weber in the probate court, and that he had a will, and that the will was recorded in the recorder’s office. These facts establish beyond question that John E. Weber died testate and that his will was admitted to probate in Cook county, and there is nothing in the record tending to prove the allegation of complainants that he died intestate.

Second—Were the declarations of Frances Weber, while in possession of the premises, competent evidence? Appellants claim they were inadmissible to prove the contents of the will. Conceding they were incompetent for this purpose, they were competent.to establish the kind and extent of the estate claimed. The declarations of Frances Weber, made right after the death of her husband, John E. Weber, were, that Weber had bequeathed everything to her so that she could'do what she would,— that he left a will and she got everything. At the time of making these declarations she had taken possession of the premises, claiming to own the whole in her own right, as devisee and legatee under her husband’s will. The evidence shows she continued, openly, notoriously and adversely, to occupy the entire premises, by herself and tenants, for a period of thirty years. She herself, or through her representatives, collected and used all the rents, paid the taxes, paid off a mortgage for about $2500 and had the release made to herself. She claimed to own the entire premises as her own. On July 17,1871, she was adjudged insane and Edward M. Bray was appointed her conservator. He filed an inventory, describing this property as owned by Frances Weber in fee, and afterwards, as such conservator, collected the rents of the premises. On October 8 and 9, 1871, the improvements on the premises were destroyed by fire. A decree of the circuit court of Will county was entered August 15, 1872, authorizing the conservator to lease the real estate, under which decree he executed a lease to William M. Stanley for the period of twenty years, by the terms of which the lessee was to erect a good, substantial stone and brick building on the premises, and pay $1000 per annum rent, payable quarterly in advance, and all assessments of every kind, the building to revert to Mrs. Weber on the expiration of the lease. Afterwards Bray resigned as conservator and James C. O’Connor was appointed as such, who made a new lease to one Henry J. Berger for five years on January 20, 1893, at an annual rental of $4200, together with water rents, taxes and assessments. Frances Weber died in 1894 without having re-married, her husband having died February 18, 1864, thirty years before, aud during all this period she held adverse, notorious and uninterrupted possession of the whole premises.

In Ricard v. Williams, 7 Wheat. 59, (recognized as a leading case,) the declarations of those in possession, whether holding for life or under claim of the fee, were held to be proper evidence. Mr. Justice Story, at page 105, says: “It is to be considered that no paper title of any sort is shown in William Dudley or his son Joseph. Their title, whatever it may be, rests upon possession, and the nature and extent of that possession must be judged of by the acts and circumstances which accompany it, and qualify, explain or control it. Undoubtedly, if a person be found in possession of land claiming it as his own in fee, it is prima facie evidence of his ownership and seizin of the inheritance. But it is not the possession alone, but the possession accompanied with the claim of the fee, that gives this effect, by construction of law, to the act of the party. Possession, per se, evidences no more than the mere fact of present occupation by right, for the law will not presume a wrong, and that possession is just as consistent with a present interest under a lease for years or for life as in fee. From the very nature of the case, therefore, it must depend upon the collateral circumstances what is the quality and extent of the interest claimed by the party, and to that extent, and that only, will the presumption of law go in his favor. And the declarations of the party while in possession, equally with his acts, must be good evidence for this purpose. If he claims only an estate for life, and this is consistent with his possession, the law will not, upon the mere fact of possession, adjudge him to be in under a higher right or larger estate.” In Lancey v. Brock, 110 Ill. 609, this case of Ricard v. Williams was recognized as authority on the question that the declarations of an owner or claimant in possession of land are competent evidence of the character and extent of the estate claimed by him; but in the Lancey case the party in possession, either in his declarations or his claims, did not go to the extent of claiming ownership of the land in fee. Nelson v. Whitfield, 82 N. C. 46.

In the case at bar it is pertinent to consider the acts of appellants, the heirs of John E. Weber, deceased, during this period of thirty years. During all this length of time they acquiesced in the exclusive possession of Frances Weber and made no claim to any portion of the premises or to the income. This is inconsistent with their present claim, but is consistent with the claim of appellees that Frances Weber claimed the whole premises as sole devisee under the will of John E. Weber, and occupied them openly, notoriously and adversely for thirty years, receiving and appropriating the rents and income to her own use and benefit.

The contention of appellants that Frances Weber occupied the premises as her quarantine right until her dower was assigned is not sustained by the facts in evidence. There being no children, if John E. Weber died intestate she inherited, as heir, one-half of the premises, and, under this view of the case, was a tenant in common to one-half of the property with the heirs of John E. Weber. Under such a case Frances'Weber could, by claim of exclusive ownership and open and notorious acts manifesting such acts for a period of twenty years, oust the co-tenants.

In Goewey v. Urig, 18 Ill. 238, we held that a sale of an entire tract by one of several tenants in common, followed by adverse possession, amounts to an ouster or disseizure of the co-tenants, and that the Statute of Limitations will bar their entry or action. We there said (p. 242): “Tenants in common may disseize a co-tenant by acts appropriating the exclusive possession of the land or permanency [pernancy] of the profits, and especially when such acts are accompanied by declarations of such an intention or it is unequivocally manifested by them. (Law v. Patterson, 1 Watts & Serg. 184; Larman v. Huey’s Heirs, 13 B. Mon. 436; Culler v. Motzer, 13 Serg. & Rawl. 356.) So a sale of the whole tract, followed by adverse possession, amounts to an ouster or disseizin of the co-tenants, and the Statute of Limitations will bar their action or entry. 13 Serg. & Rawl. 356.” In Law v. Patterson, 1 Watts & Serg. 184, (cited in Goewey v. Urig, supra,) the court held that an entry upon the whole land by one tenant in common, who takes exclusive possession and receives the rents and profits without accounting to his co-tenant, or proof of any demand upon him so to do for twenty-one years, amounts to an actual ouster; that a lease to a third party for seven years, several times renewed, by the co-tenant who went into possession, making" in all a leasehold of twenty-three years, is equivalent to a sale of the premises, and must be considered as an ouster of the co-tenant.

The case of Baldwin v. Ratcliff, 125 Ill. 376, is in harmony with the foregoing authorities. In that case Wiley R. Palmer died seized of the several tracts of land described in the bill, in Hardin county, January 1, 1853, leaving a widow and four children. Three of the children died unmarried and without issue, leaving the widow and one son, Richard, as their heirs. The widow after-wards married Hiram Belt and had six children. These children conveyed their interests to George W. Ratcliff, the complainant, who filed a bill to partition the lands. The answer denied that the complainant obtained any title to the lands through the conveyances set up in the bill, and that the possession of Richard Palmer was adverse, open and notorious, and continued from 1865 or 1866 until his death; that he cleared the lands, erected buildings, etc., and paid all taxes assessed on the lands; that the will of Richard Palmer devised the lands to the defendants in the bill and was color of title, and set up the Statute of Limitations, adverse possession arid payment of taxes for more than seven successive years. The evidence was that Richard Palmer, from the time he took possession of the lands down to his death, claimed to be the owner of the absolute title to all the lands. He leased, cut and sold timber, burned lime kilns on the land and sold and conveyed eighty acres. The lands were assessed in his name from year to year and he paid all taxes as owner. Urider the facts, no claim or possession adversely to Richard having been proven and the taxes having been paid, we held there could be no recovery.

In the case at bar there was adverse possession under claim of ownership for thirty years. It was continuous and uninterrupted possession, with payment of taxes during all this period. It was leased to one tenant for twenty years, and after the old wooden building was burned off a new and substantial brick building was erected. All the rents were appropriated and collected by Prances Weber, and she openly and notoriously claimed the property as her own. Section 1 of the Statute of Limitations (2 Starr & Curtis’ Stat. p. 2599,) provides: “That no person shall commence an action for the recovery of lands, nor make an entry thereon, unless within twenty years after the right to bring such action or make such entry first accrued, or within twenty years after he, or those from, by or under whom he claims, have been seized or possessed of the premises, except as hereinafter próvided.” Under this statute, as this court has often held, adverse possession of land for a period of twenty years, even without any deed or other muniment of title, will bar" an action brought by the owner for its recovery. The bar of the statute is not confined to actions of ejectment, but it may be relied upon to defeat a bill for partition, although the bill may be brought by one tenant in common against another. We had occasion to examine this question in Littlejohn v. Barnes, 138 Ill. 478, and after a careful examination we held that the open, visible and adverse possession of land by one tenant in common, under claim of ownership,, for over twenty years was a bar to a bill by another tenant in common for.partition, when such possession was so hostile in its character as to put the Statute of Limitations in motion against the complainant.

The heirs of John B. Weber being under no disability on February 18, 1864, when Weber died, and Frances Weber having entered into the possession of the premises as owner, claiming the entire property, and having continued to hold possession continuously and adversely, paying the taxes, appropriating all the rents to her own use and improving the property as owner, she became the owner of an estate in fee simple of the whole of the premises, although she failed to prove the contents of the will of her husband specifically devising the property to her. The twenty years statute of limitations was a bar to a recovery.

The decree of the circuit.court will be affirmed.

Decree affirmed.