Mr. J ustice Magruder1
delivered the opinion of the court:
The appellant in this case claims dower and homestead in the premises in controversy as the husband of the deceased Anna Maria Reuter, upon the alleged ground that she was the owner of said prémises when she died on February 3, 1897, by reason of having been in possession thereof for more than twenty years preceding her death. Appellant does not deny, that the appellees, who are the children of his deceased wife, are the owners of the premises in question, but he claims that they own the premises as heirs of their deceased mother, subject to his alleged right of homestead and dower therein; and his contention is, that his deceased wife acquired the ownership by reqson of an adverse and undisputed possession of the premises for more than twenty years. On the contrary, the. appellees claim that they are the owners of the premises as heirs of their deceased father, Nicholas Stuckart, or Stockhardt; that, their father having been the owner in fee of the premises when he died, their mother had no other interest therein than her right of homestead and dower; that her possession after the death of their father was not, and could not be, adverse to them, and that, at her death, she having had nothing more-than a mere life estate, the appellant, her second husband, had no interest whatever in the premises, either of dower or homestead or otherwise. (Hertz v. Buchmann, 177 Ill. 553).
In order to show title in their deceased father, Nicholas Stuckart, the appellees introduced in evidence an original deed, dated April 4, 1868, executed by Isaac Buchanan and Agnes, his wife, of Hamilton, Canada, as party of the first part, to Nicholas Stockhardt of Chicago, as party of the second part, conveying said lots 35 and 36. This deed upon its face named Isaac Buchanan and his wife as the grantors, but the deed was signed by Isaac Buchanan by Robert Reid, his attorney in fact, and by Agnes Buchanan by Robert Reid, her attorney in fact. The deed was acknowledged on the day of its date before a notary public in Chicago, who certified that Robert Reid was personally known to him as the real person, whose name was subscribed to the deed as having executed the same as the attorney in fact for Isaac Buchanan and Agnes his wife, and that said Reid, as such attorney, appeared before him in person, and acknowledged that he, as such attorney in fact, signed, sealed and delivered said deed as the free and voluntary act of said Isaac Buchanan and Agnes Buchanan, and for the uses and purposes therein set forth. Upon the back of the deed is endorsed a certificate of William L. Church, recorder of Cook county, Illinois, that the deed was recorded in his office on April 4, 1868, in book 439 of deeds at page 543.
When this deed was introduced in evidence upon the trial of the cause, it was more than thirty years old, and must, therefore, be regarded as an ancient deed. It is true that, when the original bill in this case was filed on October 21, 1897, the deed was not thirty years old, but the rule is that documents more than thirty years old at the date of the trial are “ancient,” although less than thirty years old at the date of the commencement of the suit. (Gardner v. Granniss, 57 Ga. 539; Bass v. Sevier, 58 Tex. 567; 1 Am. & Eng. Ency. of Law, p. 565, note 1). In Applegate v. Lexington, 117 U. S. 255, the Supreme Court of the United States say: “The rule is that an ancient deed may be admitted in evidence, without direct proof of its execution, if it appears to be of the age of at least thirty years, when it is found in proper custody, and either possession under it is shown, or some other corroborative evidence of its authenticity, freeing- it from all just grounds of suspicion.”
In Whitman v. Heneberry, 73 Ill. 109, we held that deeds more than thirty years old are ancient deeds, and may be admitted in evidence without proof of execution, but that, before they can be so admitted, it must appear that the instrument comes from such custody as to show a reasonable presumption of its genuineness, and that facts and circumstances must be proven, which will establish the fact that the instrument has been in existence the length of time indicated by its date. Some of the authorities differ as to whether it is necessary to show that possession was taken under the deed. It seems to be settled, however, by the weight of authority, that such possession, if necessary to be shown, need not be for the full period of thirty years, but may be for a less period if there are other circumstances tending to show the genuineness of the instrument. In Whitman v. Heneberry, supra, it was said, that endorsements or memoranda upon the deed, when they are of such character as to satisfy a cautious and discriminating mind that they would not be there if the paper were a forgery, have been considered as circumstances indicating- that the deed is genuine; It was there said that, if the deed has been on record for over thirty years, that circumstance is a strong fact in favor of its genuineness. Greenleaf in his work on Evidence says, that an ancient deed, that is to say, one more than thirty years old, is presumed to be genuine without express proof of its execution, if it is found in the proper custody, and is free from just grounds of suspicion, and is corroborated by evidence of ancient or modern correspending enjoyment, or by other equivalent or explanatory proof. In such case, the witnesses to the deed are presumed to be dead, and the deed is presumed to have constituted a part of the actual transfer of the property mentioned in it. (1 G-reenleaf on Evidence,—15th ed.— secs. 21, 144).
In the case at bar, the deed introduced was found in the drawer of an old bureau of his wife in a house upon the lots in question by the appellant himself, and taken therefrom and delivered to John Stuckart, one of the appellees and a son of the deceased, Nicholas Stuckart, after the death of Anna Maria Reuter, appellant’s wife. Appellant himself says, that the deed had been in the place where it was found, and in the custody of his deceased wife, for more than twenty years, or from the time of their marriage up to the day of her death. Anna Maria Reuter, who had been the wife of Nicholas Stuckart, was married to the appellant on September 24, 1878, and had been in possession of these premises at least two years before said marriage. Counsel for appellant say in their brief, that she had lived on the premises in question for some years prior to her former husband’s death. She was in possession of the premises, therefore, under the deed in question for more than twenty-nine years before her death. The endorsement on the back of the deed shows, that it was recorded on April 4, 1868, more than twenty-nine years before her death, and more than thirty years before the trial of the present suit in the court below. (Quinn v. Eagleston, 108 Ill. 248).
In addition to this, the evidence shows that, for some sixteen or seventeen years beginning with the year 1880 or 1881, Anna Maria Reuter paid the taxes upon these premises, and took the receipts in the name of her deceased husband, Nicholas Stockhardt. She refused to take the receipts in any other name than in the name of her deceased husband, the grantee in the deed already mentioned, and at one time the appellant quarreled with her, because she insisted upon taking out the receipts in the name of her deceased husband.
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Mr. J ustice Magruder1
delivered the opinion of the court:
The appellant in this case claims dower and homestead in the premises in controversy as the husband of the deceased Anna Maria Reuter, upon the alleged ground that she was the owner of said prémises when she died on February 3, 1897, by reason of having been in possession thereof for more than twenty years preceding her death. Appellant does not deny, that the appellees, who are the children of his deceased wife, are the owners of the premises in question, but he claims that they own the premises as heirs of their deceased mother, subject to his alleged right of homestead and dower therein; and his contention is, that his deceased wife acquired the ownership by reqson of an adverse and undisputed possession of the premises for more than twenty years. On the contrary, the. appellees claim that they are the owners of the premises as heirs of their deceased father, Nicholas Stuckart, or Stockhardt; that, their father having been the owner in fee of the premises when he died, their mother had no other interest therein than her right of homestead and dower; that her possession after the death of their father was not, and could not be, adverse to them, and that, at her death, she having had nothing more-than a mere life estate, the appellant, her second husband, had no interest whatever in the premises, either of dower or homestead or otherwise. (Hertz v. Buchmann, 177 Ill. 553).
In order to show title in their deceased father, Nicholas Stuckart, the appellees introduced in evidence an original deed, dated April 4, 1868, executed by Isaac Buchanan and Agnes, his wife, of Hamilton, Canada, as party of the first part, to Nicholas Stockhardt of Chicago, as party of the second part, conveying said lots 35 and 36. This deed upon its face named Isaac Buchanan and his wife as the grantors, but the deed was signed by Isaac Buchanan by Robert Reid, his attorney in fact, and by Agnes Buchanan by Robert Reid, her attorney in fact. The deed was acknowledged on the day of its date before a notary public in Chicago, who certified that Robert Reid was personally known to him as the real person, whose name was subscribed to the deed as having executed the same as the attorney in fact for Isaac Buchanan and Agnes his wife, and that said Reid, as such attorney, appeared before him in person, and acknowledged that he, as such attorney in fact, signed, sealed and delivered said deed as the free and voluntary act of said Isaac Buchanan and Agnes Buchanan, and for the uses and purposes therein set forth. Upon the back of the deed is endorsed a certificate of William L. Church, recorder of Cook county, Illinois, that the deed was recorded in his office on April 4, 1868, in book 439 of deeds at page 543.
When this deed was introduced in evidence upon the trial of the cause, it was more than thirty years old, and must, therefore, be regarded as an ancient deed. It is true that, when the original bill in this case was filed on October 21, 1897, the deed was not thirty years old, but the rule is that documents more than thirty years old at the date of the trial are “ancient,” although less than thirty years old at the date of the commencement of the suit. (Gardner v. Granniss, 57 Ga. 539; Bass v. Sevier, 58 Tex. 567; 1 Am. & Eng. Ency. of Law, p. 565, note 1). In Applegate v. Lexington, 117 U. S. 255, the Supreme Court of the United States say: “The rule is that an ancient deed may be admitted in evidence, without direct proof of its execution, if it appears to be of the age of at least thirty years, when it is found in proper custody, and either possession under it is shown, or some other corroborative evidence of its authenticity, freeing- it from all just grounds of suspicion.”
In Whitman v. Heneberry, 73 Ill. 109, we held that deeds more than thirty years old are ancient deeds, and may be admitted in evidence without proof of execution, but that, before they can be so admitted, it must appear that the instrument comes from such custody as to show a reasonable presumption of its genuineness, and that facts and circumstances must be proven, which will establish the fact that the instrument has been in existence the length of time indicated by its date. Some of the authorities differ as to whether it is necessary to show that possession was taken under the deed. It seems to be settled, however, by the weight of authority, that such possession, if necessary to be shown, need not be for the full period of thirty years, but may be for a less period if there are other circumstances tending to show the genuineness of the instrument. In Whitman v. Heneberry, supra, it was said, that endorsements or memoranda upon the deed, when they are of such character as to satisfy a cautious and discriminating mind that they would not be there if the paper were a forgery, have been considered as circumstances indicating- that the deed is genuine; It was there said that, if the deed has been on record for over thirty years, that circumstance is a strong fact in favor of its genuineness. Greenleaf in his work on Evidence says, that an ancient deed, that is to say, one more than thirty years old, is presumed to be genuine without express proof of its execution, if it is found in the proper custody, and is free from just grounds of suspicion, and is corroborated by evidence of ancient or modern correspending enjoyment, or by other equivalent or explanatory proof. In such case, the witnesses to the deed are presumed to be dead, and the deed is presumed to have constituted a part of the actual transfer of the property mentioned in it. (1 G-reenleaf on Evidence,—15th ed.— secs. 21, 144).
In the case at bar, the deed introduced was found in the drawer of an old bureau of his wife in a house upon the lots in question by the appellant himself, and taken therefrom and delivered to John Stuckart, one of the appellees and a son of the deceased, Nicholas Stuckart, after the death of Anna Maria Reuter, appellant’s wife. Appellant himself says, that the deed had been in the place where it was found, and in the custody of his deceased wife, for more than twenty years, or from the time of their marriage up to the day of her death. Anna Maria Reuter, who had been the wife of Nicholas Stuckart, was married to the appellant on September 24, 1878, and had been in possession of these premises at least two years before said marriage. Counsel for appellant say in their brief, that she had lived on the premises in question for some years prior to her former husband’s death. She was in possession of the premises, therefore, under the deed in question for more than twenty-nine years before her death. The endorsement on the back of the deed shows, that it was recorded on April 4, 1868, more than twenty-nine years before her death, and more than thirty years before the trial of the present suit in the court below. (Quinn v. Eagleston, 108 Ill. 248).
In addition to this, the evidence shows that, for some sixteen or seventeen years beginning with the year 1880 or 1881, Anna Maria Reuter paid the taxes upon these premises, and took the receipts in the name of her deceased husband, Nicholas Stockhardt. She refused to take the receipts in any other name than in the name of her deceased husband, the grantee in the deed already mentioned, and at one time the appellant quarreled with her, because she insisted upon taking out the receipts in the name of her deceased husband. It thus appears that the deed came from the proper custody; that possession was held under it for a long series of years; that it had upon the back of it an endorsement, showing its record at a time more than thirty years before its production upon the trial; and that the ownership of the grantee in the deed was recognized in the mode in which the taxes were paid. The conclusion from all these various circumstances is irresistible, that the deed was genuine, and that its execution was established by its production without any further proof. ‘ The doctrine, that no proof of the execution of an ancient deed is required, is based upon a former requirement, that one or more witnesses should attest the execution of the deed. But, under the statute which existed at the time whén this deed was executed, the acknowledgment before a notary public was sufficient proof of its execution, and the attestation of one or more witnesses was not required. It is not contended that there was any defect in the acknowledgment of the present deed, except in the respect hereinafter stated.
The deed appears to have been executed by the grantors therein named by one Robert Reid as their attorney in fact. It is claimed by the appellant that, on this account, the deed should not have been admitted in evidence upon the alleged ground that even a deed more than thirty years old, which is éxecuted by an attorney in fact, is not admissible in evidence without proof of the authority of the attorney to execute the deed. There seems to be some difference of opinion in the text writers, and in the decisions of the courts, as to whether the existence of a valid power of attorney will be presumed in favor of an ancient deed when such deed purports to be executed by an attorney.
The learned author of the chapter on Ancient Documents in the American and English Encyclopaedia of Law (vol. 1, p. 566, note 1,) says: “The existence of a valid power of attorney will be presumed in favor of an ancient deed, purporting to be executed by ah attorney.” In Phillips on Evidence (vol. 2, marg. p. 471, note 429,) it is said: “A power to execute a deed will, in many instances, be presumed. In most cases, where the deed would be evidence as an ancient deed, without proof of execution, the power, under which it purports to have been executed, will be presumed.”
We have examined the cases referred to to sustain the statements made by the foregoing text writers, and find that they support the statements so made. In Robinson v. Craig, 1 Hill, (S. C. Law) 251, where a deed stated that it was executed- under a power of attorney, and was received in evidence as an ancient deed without proof of its execution, it was held that the power need not be produced; and the court there say: “Antiquity and other circumstances dispense with the necessity of any proof by witnesses, of handwriting", when the deed purports to be executed by the grantor personally; and there, seems to be no good reason why they should not have the same effect, when it purports to be executed by attorney. The proof of the power would be only one of the facts to make out a due execution.”
In Doe v. Phelps, 9 Johns. 170, it was said: “An ancient deed, with possession corresponding with it, proves itself; and a power of attorney contained in such deed, and necessary to give it validity, or full effect, will equally be embraced by the”presumption.” In Doe v. Campbell, 10 Johns. 475, it was said: “The power of attorney under which the title of some of the patentees was conveyed to VanDam, after so great a lapse of time, and such a universal acquiescence in the VanDam title, was to be deemed valid without proof of its execution.” (See also Johnson v. Timmons, 50 Tex. 521; Storey v. Flanagan, 57 id. 649; Innman v. Jackson, 4 Greenl. 237; Tolman v. Emerson, 4 Pick. 160). It has been held that, after an undisputed possession for thirty years of any property, real or personal, it is too late to question the authority of the agent who has undertaken to convey it, unless his authority is by matter of record. (Stockbridge v. West Stockbridge, 14 Mass. 257; 1 Greenleaf on Evidence,—15th ed.—sec. 21).
Counsel refer to the case of Fell v. Young, 63 Ill. 106, as being opposed to the view above announced. In that case an ancient deed was produced, which was made by an administrator, and failed to show upon its face that the court, which ordered the sale, had jurisdiction over the parties to be affected by it. The rule there announced is correct, as the power there apparent upon the face of the deed was a public and statutory, and not a private, power. Such cases as that of Fell v. Young involve the question of jurisdiction of the tribunal ordering the deed to be made, and, in such cases, the power should be shown. But, in a case like the one at bar, the proof of the power is only one of the facts to make out a due execution of the deed, and the due execution of the deed is presumed in the case of an ancient deed in view of the great length of time which has elapsed, and in view of the possession taken, and other acts done under the deed.
We are of the opinion, that the court below committed no error in admitting the deed without proof of the execution of a power of attorney authorizing the attorney in fact to execute it. It was not necessary to prove title back of Nicholas Stuckart, because his title was the common source of title under whom all the parties claimed.
The proof shows quite conclusively, that the widow of Nicholas Stuckart, afterwards the wife of the appellant, was in possession of the premises under and in subordination to the title of her deceased husband, Nicholas Stuckart. An adverse possession for twenty years, which is sufficient to defeat the legal title, must be hostile in its inception, as well as continuous for the whole period of twenty years. (Ambrose v. Raley, 58 Ill. 506; Downing v. Mayes, 153 id. 330). It cannot be said that the possession of Mrs. Reuter was hostile in its inception to the title of her children-. Her possession was merely a continuation of the possession of her deceased husband, Nicholas Stuckart, and her conduct while she was in possession shows, that she recognized her tenure as being derived from her deceased husband, Nicholas Stuckart.
Under the statute as it existed when Anna Maria Stuckart, afterwards Reuter, went into possession, her right of possession was defeasible upon the assignment of her dower. In her case, however, dower was never assigned, and her possession continued by consent of the heirs for the term of her natural life. 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. (Riggs v. Girard, 133 Ill. 619, and cases cited; Gosselin v. Smith, 154 id. 74). It follows that, in this case, Mrs. Reuter acquired no title by an adverse possession of twenty years.
Our conclusion is, that the appellees acquired title to the property as heirs of their deceased father, Nicholas Stuckart, subject to right of homestead and dower in their mother, and that, when their mother died, appellant had no interest in the property. As to the fact that appellant may have performed some labor for his wife upon the improvements located upon the premises, it may be said that he did not thereby acquire any interest therein. A husband in this State is not entitled to receive any compensation for labor performed or services rendered in the management of his wife’s property. (Rev. Stat. chap. 68, sec. 8).
Accordingly, the decree of the superior court of Cook county, dismissing the amended bill, and granting the relief prayed by the cross-bill, was correct; and the said decree is affirmed.
Decree affirmed.