Smith v. Hollenback

46 Ill. 252

• Court: Illinois Supreme Court
• Decided: September 15, 1867
• Status: Published

Opinion

Mr. Justice Lawrence

delivered the opinion of the court:

In the opinion of a majority of the court, the complainant, Getty Jane Smith, had no interest in the land in controversy that would entitle her to maintain this bill. The legal title, unquestionably, passed by the deed from James Miller to Boyd, and whether this land was included in the deed-through mistake or design, is a question which can arise only between the parties to that conveyance, or persons claiming under them. Even had the legal title remained in James Miller, this complainant could not have maintained a.bill against him for its divestiture.. Had James and Abraham Miller been tenants in common, doubtless their acts would have been sufficient evidence of a parol partition. But they were not. Abraham took nothing under the sale on the judgment and execution against John Miller, because the latter had previously conveyed the premises to James Miller. Getty Jane took nothing by the will of her husband, Abraham Miller, because he had nothing to devise. She took nothing by the deed from Robinson, because the deed to him from James and Abraham Miller had never been delivered, and he had no title to convey. She had no equitable interest arising from the payment of money by herself or her husband, as there is no proof that any money was ever paid. She had, in short, only a naked possession, and she'must be left to defend that in the courts of law. The decree of the Circuit Court is affirmed.

Decree affirmed.