Lavalle v. Strobel

89 Ill. 370

• Court: Illinois Supreme Court
• Decided: January 15, 1878
• Status: Published

Opinion

Mr. Justice Walker

delivered the opinion of the Court:

There was a village on a portion of the Cahokia commons, on the 18th day of September, 1817, and residing therein about fifty families. Some fifty-two of the male residents of the place, on that date, executed a power of attorney to Nicholas Jarrot, Jesse B. Thomas, John Hay, John Hays and Francis Turcotte, to lay out a town on a part of the common east of the village of Cahokia, and to make a plat of the same; and to petition Congress to grant the “ fee simple right” to so much of the commons as would embrace the town thus laid out; and to distribute among them their several shares as these commissioners might think fit and proper. And also to sell such portions, and convey the same in fee, as might be necessary to defray the expenses; and in the absence or death of one or two of the attorneys, the others were empowered to execute and carry out the power thus conferred.

This power of attorney was acknowledged before a justice of the peace of the county, and the county clerk certified to his' official capacity. The power was duly recorded on the 26th of September, 1817.

The persons named in the power of attorney proceeded to lay off and plat the town, and named it “ Illinois City.” They laid off and designated on the plat a public square, an English and a Catholic graveyard, and a Catholic and an English church, and a public school on the grounds they were to occupy. The plat was acknowledged by three of the attorneys before a justice of the peace of the county, on the 2d day of July, 1825, and was recorded on the 27th day of that month. On this plat was marked the name of each person to whom the lot or lots were awarded. Appellee traced title by conveyances, from the persons whose names were written on the lots in the plat as owners, to himself, and proved' that he had been in the full and peaceable possession of the lots, continuously, for more than twenty years.

It appears that after the survey and plat were made, and before the plat was acknowledged, the persons signing the power of attorney, in the month of January, 1819, presented a petition to Congress, reciting that they had caused to be laid off into town lots a portion of Cahokia common, and stating the manner in which it was done. They pray that Congress may grant and confirm to them the fee simple estate of the town thus laid off, to the same extent as contained in the plat of the town, and that one or more commissioners be appointed to convey to each inhabitant his portion as aforesaid of the town lots, and to convey such lots as might be sold to defray the expenses of the survey, platting, etc.

The committee on public lands reported a bill, and referred to and recited the steps that had been taken in laying off the town and the division of the lots amongst the citizens according to their respective interests therein. And it seems that in pursuance to the petition, Congress passed this act:

Be it enacted, etc., That the proceedings of the inhabitants of the village of Cahokia, in the State of Illinois, by their agents, Jesse B. Thomas, John Hay, John Hays, Nicholas Jarrot and Francis Turcotte, in laying out a town called “ Illinois City,” on one of the tracts of land confirmed to them as a common by an act of Congress, passed on February 20, 1812, and the distribution made by the said agents of the lots amongst the inhabitants of said village of Cahokia, be and the same are hereby confirmed.

Sec. 2. And be it further enacted, That the said Jesse B. Thomas, John Hay, John Hays, Nicholas Jarrot and Francis Turcotte, or any three of them, be and they are hereby authorized to convey by deed, in fee simple, the lots that have heretofore been distributed as aforesaid to those persons or their legal representatives to whom distribution as aforesaid was made.

It is said these lands or commons were granted by the French government to the inhabitants first settling Cahokia, and that their title thereto was recognized and secured to them by the treaty of cession from that government to the government of Great Britain, and by the latter, by a like treaty with the government of the United States, and if not, then the act of Congress of 1812 granted these commons to the inhabitants of that village. After the grant, and the State government having-been inaugurated, and Illinois having been admitted into the Union, that Congress had no further power to prescribe the manner in which these or any other lands not owned by the general government should be alienated, but that power was vested exclusively in the State government, and the act of Congress of May, 1820, was without power, and confirmed or conferred no rights on any person, but left them in common as before. It may be doubtful whether this act of Congress did partition the lands by adopting and confirming the town plat.

It is also contended that the 8th section of article 8 of the constitution of 1818 provides that such grants shall remain common to the inhabitants of the village, etc., to which the grant was made. The provision is this: “And all lands which have been granted as a common to the inhabitants of any town, • hamlet, village or corporation, by any person, body politic or corporate, or by any government having power to make such grant, shall forever remain to the inhabitants of such town, hamlet, village or corporation; and said commons shall not be leased, sold or divided under any pretense whatever: provided, however, that nothing in this section shall be so construed as to affect the commons of Cahokia or Prairie du Pont; provided, also, that the General Assembly shall have power and authority to grant the same privileges to the inhabitants of the said villages of Cahokia and Prairie du Pont as are hereby granted to the inhabitants of other towns, hamlets and villages.”

It is manifest to our minds that this provision of the fundamental law excluded these two towns or villages from the operation of that section, and left them to be governed and controlled by the general laws regulating alienations and partitions, but at the same time empowered the General Assembly to place them under the same prohibitions that were imposed upon other towns or villages holding commons. The obscurity, if there is any, in the second proviso of the section, grows out of the term privilege, when referring to the provisions relating to other towns and villages. Mow, what were the privileges granted by that section to other towns, villages, etc.? The constitution had left all other persons and corporations holding lands as tenants in common, with power to lease, sell or divide the same, and the framers of the organic law, no doubt, regarded it a privilege to the inhabitants of such towns and villages to-have a perpetual prohibition placed upon their power, and on any other power to lease, sell or divide their commons, and being an exception from the general law on the subject, it was esteemed a privilege and not a restriction. These inhabitants being French in their origin or extraction, and having acquired these commons, in accordance with the laws of their own country, no doubt esteemed it, and so did the framers of the constitution, as a great and valuable privilege to continue to hold them according to the laws and customs . of their mother country and of their forefathers. This is, no doubt, the reason that term was used, as that was then its meaning.

With this construction the language of the section is harmonious, and is free from obscurity—otherwise it would be obscure, if not meaningless, and it was, no doubt, the knowledge of the strong predilection of these French inhabitants for their ancient usages and the customs and laws under which they had lived, that induced the convention to empower the General Assembly to restore them to the same condition under which that section had'placed the other towns and villages, as to their commons. But the' General Assembly has never adopted such'an enactment, and hence Cahokia and Prairie du Pont have, ever since the State was organized, been free from the restriction imposed on the other towns and villages holding commons.

The common law of England, of a general nature, and applicable to our condition, and all statutes in aid thereof, and to supply defects therein, with some exceptions, prior to the year 1607, were in force in Illinois Territory after the cession by Great Britain, such having been the law of Virginia prior to the cession by that State. It is true that the second section of the ordinance of 1787 preserves to the French and Canadian inhabitants of Vincennes and the Kaskaskias and neighboring villages, etc., their laws and customs then in force relative to the descent and conveyance of property. It was whilst this law and the ordinance were in force that the proceeding to partition this property was inaugurated, and whether, under their laws and customs, they could make partition does not appear. But this ordinance did not compel them to devise and convey their property in accordance with their laxvs and customs, but it simply conferred upon them the privilege of doing so if they chose. But wills and deeds of conveyance executed by them, in accordance with the requirements of the act of 1787, and the common law, were unquestionably valid.

But this partition was not completed, although commenced before, until after the State government was organized, the plat having been acknowledged and recorded in July, 1825. This, then, was completed after the ordinance of 1787 had been superseded by the State constitution, which had excluded Cahokia from the provision prohibiting such commons from ever being leased, sold or divided, and the inhabitants of that Village were free to adopt any means the law authorized to be employed to make partition of this land owned and held by them in common.

The law then in force authorized tenants in common to make partition by bill in equity, by a proceeding under the statute (see Laws 1819/p. 385,) or by agreement by the owners themselves, and, until the adoption of the Statute of Frauds, a partition might be made by verbal agreement, and it was binding if followed by livery of seizin, and an agreement in writing to make partition will have the same effect as an actual partition at law. 2 Cruise Dig. 484. In this case there was a written agreement under seal to partition, and persons appointed to make partition.

The act of the 4th of January, 1825, which provides for the laying off, platting, and recording town plats, was in force when this plat was acknowledged and recorded. The second section (Sess. Laws, p. 54) provides, “that every donation or grant to the public or any individual or individuals, religious society or societies, or to any corporation or bodies politic, marked or noted as such on such plat, wherein any donation or grant may have been made, shall be considered, to all intents and purposes, as a general warranty against such donor or donors,” to the donees or grantees, etc., for the purposes intended by the donors, grantors, etc., and the third section requires the plat to be acknowledged before a Justice of the Supreme Court, a judge of the circuit court or a justice of the peace of the county, and to be recorded with the plat. This plat was acknowledged before a justice of the peace of St. Clair county, and the acknowledgment states that it was a true plat of the town, “ and that the names of several persons who appear thereon are the names of the first claimants to the several lots to which the said persons’ names are affixed.” The act then in force prescribed no form for the acknowledgment, and the form adopted in this case we regard as fully complying with the statute.

The names of the persons written on the lots, designated on the plat, by necessary intendment, must be held to imply" that such persons were severally donees or grantees of the lots thus marked. Marking lots, “Catholic graveyard,” “ English graveyard,” “Catholic Church,” “English Church” and “Public Schools,” as was done on this plat, clearly implied a donation or grant for those several purposes. We presume no one would doubt that the plat, by its own operation, vested the title in the persons representing these churches, graveyards and schools, or, if there was no person to take, then in the donors for the use of these several bodies. Then why not the same presumption under the statute in favor of these several persons whose names are written in like manner on the plat of the lots ? No reason is perceived. But if there could be any doubt, it is removed-by the acknowledgment, as the agents of the owners, acting under a sufficient power, have removed all doubt, as they say that these names represent the first claimants of the several lots to which their names are affixed. There can be no doubt that these lots were thus allotted to the several persons thus named.

Here, then, we have the persons having a common interest in lands appointing agents and fully empowering them to lay off, survey and plat a portion of these lands into a town, and when thus platted, to divide the town lots among the several claimants according to their separate interests. This, their agents did, and instead of requiring all of the owners but one to join in conveying to him his portion, and in like manner requiring a like deed to each owner, they adopted the simple mode of making the grant to each owner for his several portion operative through the plat they made and recorded. This operated as a partition made by the claimants, by their agents appointed and empowered to do so, and who acted for them, and the partition thus made was satisfactory and was considered as binding by the parties in interest, their heirs and grantees, for a half of a century.

After such an acquiescence for such a great period of time, we would, if necessary, be compelled to presume the necessary partition deeds were executed by the parties in interest.

If, on the contrary, the inhabitants of this village did not derive a fee to these commons by the grant from the French government, although the commissioners appointed by the general government report that a tract of four leagues square was granted in fee to the missionaries of Cahokia and Tamarois, on the 22d of June, 1722, by the first Lieutenant of the King of France and another acting with him. If this grant ever existed and was valid, it was to the missionaries, and not to the inhabitants of these settlements, and we have no evidence that this grant to the missionaries was ever confirmed or recognized by Congress. On the contrary, we find that body claiming the right of ownership to these lands by a special enactment, on the third of March, 1791, by which they appropriated these lands to the use of these villages, to be used by them until otherwise disposed of by law. It will be observed that this act only appropriates these lands to be used as a common until they should be disposed of by law. The act does not grant the fee, but simply the use of the lands in common to the inhabitants.

Commissioners appointed for the purpose made a report of a survey, etc., of these commons in 1809, and say that the common field lands, by the plat and list of claims annexed, are composed of the various grants or allotments made to the several inhabitants of the villages, and that there is no dispute between the individuals claiming, about their titles or boundaries, and as to the town lots, they report they are similarly situated with the common fields. How similarly situated? By grants or allotments made to the several inhabitants of these villages. This was followed by the' act of Congress of the 20th of February, 1812, confirming the claims of persons to town or village lots of all such rightful claimants, according to their respective rights thereto, but leaving individuals disputing the claims of others to have them decided according to law by the proper tribunal. Here, there is only a-confirmation of rightful claims, but no language implying a grant of any new or additional right or title. If, then, the inhabitants were not the owners in fee, as tenants in common, and the title remained in the general govérnment, the act of the 1st of May, 1820, by confirming the plat and distribution made by their agents, Jesse B. Thomas and others, undoubtedly transferred the fee to each person according to the distribution, as they authorize the agents or any three of them to convey the title in fee to the persons to whom the allotment had been made. This law, by its own terms, passed the fee, if it was then in the government, to the distributees of the lots. The act authorizes the commissioners, but does not require them, to make such conveyances. But if it did, this lot was conveyed by three of them to the heirs of If icholas Jarrot, from whom appellee derives title, and all title which the government then held and possessed has passed to and is held by appellee.

Again, we, under the circumstances of this case, must hold that twenty years of actual possession, claiming title against all the world, forms a complete bar to a recovery.

In the case of Doe ex dem. etc. v. Prosser, 1 Cowper R. 217, it was held that upon a possession of thirty-six years by one tenant in common, not paying or accounting with his co-tenant for rents and profits or recognizing his rights to the premises, an ouster would be presumed, and that the occupant had held adversely, and that an entry was barred and a recovery could not be had in ejectment. The case of Goewey v. Urig, 18 Ill. 238, holds that where one tenant in common disseizes other cotenants, and holds adversely, the statute will bar an action by his cotenants, and it was held, that the sale of the whole tract by one cotenant to a third person, the sale being followed by adverse possession, amounts to an ouster or disseizin of the cotenants, and the Statute of Limitations will bar their action or entry. It then follows, that where a tenant in common disseizes his cotenant, claiming the land as his own, and keeps him out, and not recognizing his rights, but denying them, the Statute of Limitations will run, and bar a recovery, as it would were they not tenants in common.

Here, appellee is shown to have occupied adversely to all persons, used and claimed the land as exclusively his own, and has never paid rents or accounted with any one for more than twenty years, and no reason is perceived why he may not invoke the rule announced in these cases to protect his rights and to bar a recovery. If the title to the land was held in common, it vested in the grantees, as tenants in common, and he may, especially under his chain of title, oust and disseize his other cotenants, and bar a recovery by them or by any person for them.

It is urged, that these grants have been repeatedly held by the courts to be vested in the villages and not the inhabitants. Concede this to be true, and still the grants were for the use of the inhabitants residing in these various villages. Hot being incorporated or authorized to act as corporate bodies, it is difficult to see how they could take as villages. At all events, Congress manifestly intended these commons for the people, and not the villages as corporations. If the French government granted the fee to the missionaries, that was manifestly for the use. of the inhabitants. So it does not matter whether the title was acquired from the French government or by grant from Congress, as, in either case, the title was granted for the use of the inhabitants.

This, then, if not at law, did in equity, give each inhabitant an equal common right or interest in these common fields, being a common right or interest in its nature like an estate held by tenants in common. Whatever the estate may have been which each claimant held, from its very nature it was such that after partition each person might enter into exclusive possession of the portion assigned to him, and by continuous exclusive possession he would disseize all others having a common or specific interest in the property, and by possession, claiming title for a sufficient time, an action by the village or any or either of its inhabitants would be barred by the Statute of Limitations, and this, whether the title was a tenancy in common, or a common interest not amounting to such an estate. In other words, the possession in this case, we think, was of such a character as barred a recovery, whatever the nature of the title or in whomsoever it may have been vested.

Perceiving no error in the record, the judgment of the court below must be affirmed.

Judgment affirmed.