O'Laughlin v. Covell

78 N.E. 59, 222 Ill. 162

Opinion

Mr. Justice Hand

delivered the opinion of the court:

It is first contended that the circuit court was without jurisdiction to hear and determine the application on the ground that the service by publication upon Maria S. Ingersoll, Minerva C. Payne, and their husbands, and the unknown heirs'of Lyman B. Bennett, and Ephraim Collar and Andrew J. Brown, trustee, and Job D. Hoes, was not in compliance with the statute. The record shows that Maria S. Ingersoll and Minerva C. Payne and their husbands had released to the defendant in error all their interest in the premises prior to the entry of the decree, and that they had no interest in the premises and were not necessary parties to the proceeding at the time the decree was entered. The fact, therefore, that they were not properly served with process ought not to work a reversal of the case; and the record further fails to show that-Lyman B. Bennett and Ephraim Collar, or their heirs, if any, and Andrew J. Brown, trustee, and Job D. Hoes, have, or ever had, any interest in said premises, and that they, at most, were nominal defendants, and the application as to them might well have been dismissed without impairing the right of the defendant in error to have his title registered. Conwell v. Watkins, 71 Ill. 488.

If, however, it were conceded said parties were necessary parties to the proceeding and "that the service upon them was insufficient, we are of the opinion the plaintiffs in error can not raise that question at this time as a ground of reversal in this court. While this proceeding is a statutory one, it is governed by the method of procedure adopted in chancery cases, so far as the rules of chancery practice are applicable .thereto, (Gage v. Consumers’ Electric Light Co. 194 Ill. 30,) and as the parties defaulted are not here complaining of the decree entered against them, the plaintiffs in error cannot complain of the entry of such decree on their behalf. In Culver v. Cougle, 165 Ill. 417, on page 419, the court said: “The fourth point relied upon is, that the court erred in allowing certain defendants to the bill to be defaulted who were brought in by publication of notice, for the reason that no sufficient affidavit was filed to authorize service by publication. The appearance of Nelson Culver, the mortgagor, and Morton Culver, plaintiff in error, was entered, and it is nowhere claimed that they were not properly in court. The defendants to the bill who were defaulted are making no complaint in regard to the sufficiency of the default entered against them. The error, if one was committed, related to them, and to them alone. It did plaintiffs in error no harm, and they have no just ground of complaint.”

It is next objected that the examiner of titles erred in permitting applicant to testify, generally, as a witness in his own behalf, as it is said he was an incompetent witness, as against the plaintiffs in error, as to facts which occurred during the lifetime of Samuel H. Giles, their father, and during their minority. There was no objection made to the competency of the applicant as a witness at the time he testified before the examiner of titles, nor was there at that time any distinction made as to the competency of his testimony as to facts occurring prior or subsequent to the death of Samuel H. Giles or during the minority of the plaintiffs in error, but he was permitted, without objection on the part of the plaintiffs in error, to testify generally with reference to all facts within his knowledge, material to a determination of the matter then on hearing before the examiner of titles. The applicant was clearly a competent witness as to all facts within his knowledge subsequent to the time when the plaintiffs in error attained their majority, and if they desired to limit his testimony they should have done so by calling the attention of 'the examiner of titles to the fact that he was incompetent to testify to any fact which had occurred prior to their attaining their majority,—at least they should have raised such objection by proper objection to the examiner’s report before the examiner of titles and by exceptions before the chancellor. This they failed to do, and we think thereby waived their right to now insist upon such objection. In Glos v. Hoban, 212 Ill. 222, on page 223, it was said: “The complaint that the examiner of titles received in evidence certain abstracts of title without the requisite proof that the original deeds purporting to be shown by the abstract had been lost and the records thereof had been destroyed by fire, or that it was not in the power of the defendant in error to produce the original deeds, or that the abstracts of title had been made in the ordinary course of business, etc., as required by sections 23 and 24 of chapter 116, (3 Starr & Cur. Stat. 1896, p. 3360,) cannot be investigated in this court for the reason this ground of complaint was not specifically made in the objections filed to the report of the examiner of titles, and in the exceptions to such report filed in the circuit court. The same rules apply with reference to the mode of preserving for review the rulings as to objections and exceptions presented to the report of the examiner as are applicable to the review of objections and exceptions to the reports of masters in chancery.—Gage v. Consumers’ Elec. Light Co. 194 Ill. 30.”

It is further contended that the husband and heirs of Mary J. Eastman were not made parties to the application, and for that reason, it is said, it does not appear that the defendant in error has title to said premises as against the husband and heirs of Mary J. Eastman, deceased, and for that reason it is urged the defendant in error is not entitled to have his title registered. (Glos v. Kingman & Co. 207 Ill. 26.) Mary J. Eastman and husband in 1865 quit-claimed their interest in the premises to defendant in error. Prior to that time Marcellus Coveil had died, and his mother, Elizabeth Covell, who was then living, inherited two shares of his interest in said premises. Elizabeth Coveil died in 1866, which was subsequent to the date of the quit-claim deed from Mary J. Eastman to the applicant, and upon the death of Elizabeth Coveil said Mary J. Eastman inherited a part of the premises from her mother which her mother had inherited from Marcellus, and upon the death of Mary J. Eastman, which occurred some three or four years prior to the filing of the application, the interest which she inherited from her mother, unless barred by the Statute of Limitations, descended to her heirs, subject to the rights of her husband therein. The applicant claimed title in fee to said premises by virtue of descent from his father, Thomas C. Covell, and his brother Marcellus, and by virtue of deeds from his brother and sisters. He also claimed title by virtue of the twenty years’ Statute of Limitations. The evidence is undisputed that he had been in possession of the premises upwards of fifty years at the time he filed his application for registration, and that he procured a quit-claim deed from Mary J. Eastman and husband for her interest in said premises in 1865. Whatever interest Mary J. Eastman derived in said premises by inheritance through her mother, vested in her in 1866. The applicant, subsequent to the vesting of such interest, remained in possession of said premises for more than thirty years prior to her death, during which time he farmed and pastured the land and paid the taxes thereon,' claiming to be the absolute owner thereof. Clearly, at the time of the death of Mary J. Eastman her interest was barred in said premises, and at the time the applicant filed his application for registration the husband and heirs of Mary J, Eastman were barred by the twenty years’ Statute of Limitations, which had run during the lifetime of Mary J. Eastman, from asserting any claim to the land as against the defendant in error. The only persons making any claim to the land the title of which is sought to be registered, hostile to the defendant in error, are Phoebe Killham, Perry Giles, Winfield S. Giles, Anson Giles, Emeline Green, George E. Smith and Lona Boeger. Their claim is based upon a deed to Samuel H. Giles made by Thomas R. Covell January 31, 1846. None of said parties have ever been in possession of the premises in question or any part thereof, while the applicant and his ancestors and grantees have been in the open, exclusive and notorious possession of said premises, claiming to own the same, since 1847* This long possession clearly had, at the time the decree was entered, ripened into an absolute title in fee simple in the defendant in error, as none of the adverse claimants appear to have labored under any disability for a period of more than thirty years prior to the date of the filing of the application.

We think the court properly decreed that the applicant was the owner of said premises in fee simple and entitled to have the title thereto registered in him under the terms of said Registration act.

The decree of the circuit court will be affirmed.

Decree affirmed.