Weigel v. Green

75 N.E. 913, 218 Ill. 227

• Court: Illinois Supreme Court
• Decided: October 24, 1905
• Status: Published

Opinion

Mr. Justice Magruder

delivered the opinion of the court:

First—The appellant, against whom the present action of ejectment is brought, sets up section 6 of the Limitation act as a defense. He claims that, under the deed, dated March 28, 1864, executed by Martha Ann Green, and her husband, Cornelius Green, to Daniel Weigel, appellant’s father, of Macon county, Illinois, as color of title, his father and his brothers and himself have been in possession of the premises, and paid all taxes legally assessed thereon, for more than seven years, and are, therefore, the owners of the premises.

It is not denied that, under the terms of the will of Katherine Ann Stipp, who died on March 31, 1861, her grand-daughter, Martha Ann Judah, was vested only with a life estate in the property. The appellees, as children of Martha Ann Green, (formerly Martha Ann Judah,) were remainder-men or reversioners, entitled to the remainder or reversion in the land at the time of the expiration of the life estate of their mother. Martha Ann Green did not die until February 19, 1904, and, therefore, the life estate did not end until the latter date. This ejectment suit was begun by the appellees, as such remainder-men, on July 28, 1904, and therefore it cannot be said that they have been guilty of any laches in bringing suit for the property since the falling in of the life estate.

When the deed of March 28, 1864, was executed by Martha Ann Green, the owner of the life estate, and her husband, Cornelius Green, to Daniel Weigel, the latter became vested only with the interest that Martha Ann Green then owned, and, as that interest was only a life estate, Daniel Weigel only received by his deed an estate in the property for the life of Martha Ann Green. Although the deed on its face purported to convey the fee, it, as matter of fact, only conveyed the life estate of Martha Ann Green.

Appellant, by the death of his father, Daniel Weigel, and by the death of his brother, Solomon Weigel, and the conveyances mentioned in the statement preceding this opinion, took no other estate in the property, and never had any other estate in the property, than that which his father obtained by the deed of March 28, 1864, to-wit, an estate for the life of Martha Ann Green. It follows that the possession of the land by appellant, and his father, and brothers, was merely the possession of tenants for life, and cannot be adverse to appellees, who are the remainder-men or reversioners. This is so, even though the conveyance to Daniel Weigel purported to pass the absolute title to the property. The possession of Daniel Weigel, purchaser from the tenant for life, and that of his son holding under him, was not and could not be, during the continuance of the life estate, adverse to the appellees as remainder-men, so as to set the Statute of Limitations running against them. It is only since the death of Martha Ann Green on February 19, 1904, when the life estate fell in, that the possession became adverse to the appellees. The possession of the tenant for life, or his vendee, during the continuance of the life tenancy is, in contemplation of law, the possession of the remainder-man or reversioner, and the latter cannot, during the life of the person for whose life the life estate is, bring an action against the person in possession under such life tenant to recover possession of the premises. (Turner v. Hause, 199 Ill. 464, and cases therein referred to, and quoted from). In Mettler v. Miller, 129 Ill. 630, it was said (p. 642) : “All statutes of limitation are based on the theory of laches, and no laches can be imputed to one, who has no remedy or right of action.” Appellees had no remedy or right of action until February 19, 1904, and, therefore, the bar of the statute could not begin to run against them until that time. This is the express provision of section 3 of the Limitation law, which must be construed in connection with section 6 of that act. Section 3 provides that, “when the party claims by force of any remainder or reversion, his right, so far as it is affected by the limitation herein prescribed, shall be deemed to accrue when the intermediate or precedent estate would have expired by its own limitation.” (2 Starr & Curt. Ann. Stat.—2d ed.—p. 2603).

It makes no difference that the taxes were paid by Daniel Weigel, and his sons, including the appellant, because “it was the legal duty of the tenant for life to pay the taxes, and by discharging that duty he could acquire no right against" appellees as remainder-men. (Higgins v. Crosby, 40 Ill. 260; Prettyman v. Walston, 34 id. 175; Waldo v. Cummings, 45 id. 421). Nor does it make any difference that certain improvements were made by the appellant upon the property. In Hagan v. Varney, 147 Ill. 281, we said (p. 292) : “Nor can a life tenant, by placing permanent improvements on the land, however much they may enhance .the value of the estate, create any charge for the moneys thus expended against the remainder-men. Such improvements must be deemed to have been made by the life tenant for his own benefit and enjoyment during the pendency of his own estate, and, upon the termination of the life tenancy, they, being a part of the realty, pass as such to the one in whom the remainder is vested, and he takes them without any liability to recompense the life tenant for his expenditures."

In view of the principles thus announced, it follows that appellees were the owners of the property, as found by the trial court, and that the appellant is not in a position to set up the bar of the Statute of Limitations as a defense.

Second—It is said, however, by counsel for appellant, that neither Daniel Weigel, grantee in the deed of March 28, 1864, nor any of those holding- under him, had notice that there was an outstanding life estate in Mrs. Martha Ann Green, or that the appellees were owners of the remainder or reversion after the expiration of such life estate. In support of the position, that notice is necessary in such a case, appellant’s counsel refer to four cases, decided by this court, to-wit, Dugan v. Pollett, 100 Ill. 581, Safford v. Stubbs, 117 id. 389, Burgett v. Taliaferro, 118 id. 503, and Lewis v. Pleasants, 143 id. 271. The case of Safford v. Stubbs, supra, was explained and distinguished, and shown to be consistent with the views hereinbefore expressed, in the case of Mettler v. Miller, 129 Ill. 630. In Mettler v. Miller, supra, it was said that the case of Salford v. Stubbs, supra, is but the recognition of a rule, which is held in many adjudicated cases, and is thus formulated in Barrett v. Stradl, 73 Wis. 385: “When a person enters under a deed from the person who holds the life estate, which on its face conveys an estate in fee, and when the grantor intends to- convey the fee, and the grantee supposes- he is getting a conveyance of the fee, .the person entering under such deed holds, in fact, adversely to all the world; but he cannot avail himself of the rights of an adverse possession, under the statute, as against the remainder-man, during the life of the owner of the life estate, but immediately upon the death of the person holding the life estate, such possession', if continued, becomes adverse to the remainder-man.” As to the case of Burgett v. Taliaferro, supra, we discover nothing in that case bearing upon the question involved here. In the cases of Dugan v. Pollett, supra, and Lewis v. Pleasants, supra, the attention of the court does not seem to have been called to the phraseology of clauses 2 and 3 of section 3 of the Limitation act. (2 Starr & Curt. Ann. Stat.—2d ed.—p. 2603 ). The language of those clauses is positive to the effect that the right of entry of the remainder-man will be deemed to accrue only when the precedent estate expires by its own limitation. The provisions of section 3 are not qualified by any statement, or intimation, that the party in possession shall or shall not have notice of the rights of the remainder-man or of the owner of the precedent estate. And it is clear that a right of entry cannot be barred until such right has accrued. The facts in Dugan v. Pollett, supra, were peculiar, in that the parties, claiming by reason of possession and payment of taxes under color of title, were the owners in fee of one-half of two of the tracts there involved and ,of an undivided interest in the third tract, and were, therefore, tenants in common with the remainder-men; and it is there said (p. 588) : “It follows that appellants, and those under whom they claim, have, since their respective titles accrued, been, and are now, tenants in common with the appellees; hence, in determining whether the Statute of Limitations is a bar to the present proceeding, it is proper to keep this relation of the parties in view. The general rule unquestionably is, that the statute does not run as between tenants in common, on the ground, in part, that the possession of one tenant, in contemplation of law, is the possession of the others, and this is especially so where all the parties derive title from the same deed or conveyance.” The case of Lewis v. Pleasants, supra, was also peculiar in its facts, inasmuch as, in the main opinion in that case, the instrument relied upon as color of title was not a deed from the owner of the life estate, but a tax deed, and in that case it was said as to the title of Mrs. Lewis, who held only a life estate, as follows (p. 287) : “If the only title or apparent title of Mrs. Lewis to the lands in question at the time of the execution by her of said conveyances, had been that derived from the will of her husband, it might perhaps be questionable whether the possession of her grantees would have been adverse to the owners of the reversion, so as to bar the latter under the seven years statute of limitation.” The will of the husband in the latter case had devised his land to his widow and the heirs of her body, and so it was held that, under section 6 of the statute relating to conveyances, the devise vested in her only a life estate with remainder in fee to the heirs of her body, leaving the reversion, in case of an entire failure of issue, in the heirs-at-law of the devisor. But if the cases referred to by counsel do support the position, that the party in possession of the property, in such a case as the one at bar, under color of title, can set up the Statute of Limitations as a defense, if he has no notice of the will or instrument, creating the life estate or the estate of remainder or reversion, still we think that, under the facts here, Daniel Weigel, and those holding under him, must be regarded as having notice of the existence of the life estate, and of the rights of the remainder-men.

Third—It may be that the copy of the will of Katherine Ann Stipp, which was filed for record in Macon county on January 27, 1863, and was, therefore, on record when Daniel Weigel received the deed, dated March 28, 1864, may not have been properly authenticated as a foreign will under the act of Congress, so as to operate as constructive notice thereof to Daniel Weigel—the will of Katherine Ann Stipp having been executed and admitted to probate in Lawrence county, Indiana. In Harrison v. Weatherby, 180 Ill. 418, it was held that a copy of a foreign will, although recorded, will not operate as. constructive notice, unless it is authenticated and certified in the manner, required by section 9 of the Illinois act in regard to wills. While, however, such a copy will not operate as constructive notice, yet if Daniel Weigel had had actual notice of the will of Mrs. Stipp, it would make no difference that the copy, of which he had notice, was not properly authenticated as a foreign will. So, if there were circumstances to put Daniel Weigel, or those holding under him, upon inquiry as to the existence of such will, his position is no different from what it would have been if he had had actual notice.

The deed, dated March 28, 1864, from Martha Green and her husband, Cornelius Green, to Daniel Weigel, begins as follows: “Know all men by these presents that we, Martha Green, (formerly Martha A. Judah, the only heir and legatee of Katherine Stipp, late of Lawrence county in the State of Indiana, deceased,) and her husband, Cornelius Green, of the county of Jackson in said State, * * * do hereby grant, bargain, sell,” etc. When Daniel Weigel accepted this deed, the title to the property of record was in Katherine Ann Stipp, and there was no conveyance from Katherine Ann Stipp to Martha Ann Green, the grantor of Daniel Weigel. In other words, there was a break in the title, and it was for Daniel Weigel to inquire and ascertain for himself how the title, which was of record in Katherine Ann Stipp, had passed into his grantor, Martha A. Green. The language, above quoted from the deed, advised Weigel that Katherine Stipp was dead, because she is spoken of as “late of Lawrence county in the State of Indiana, deceased.” He was also thereby advised that her residence was Lawrence county, Indiana. He was also therein advised, by the use of the word, “legatee,” that Katherine Stipp had left a will, because Martha Green, formerly Martha A. Judah, is referred to as the only heir and legatee of Katherine Stipp. The property conveyed by this deed was real estate, and, although, “legatee,” is generally the word applied in wills to indicate the taker of personal property, yet it sometimes, when used in connection with the description of land, has the meaning of devisee. In 18 Am. & Eng. Ency. of Law,— 2d ed.—p. 821, it is said: “The word ‘legatee’ means in legal acceptation a donee of personal or movable estate, but it may mean a donee of real estate whenever the testator plainly used it in that sense.” In Chandler’s Appeal, 34 Wis. 512, it was said: “The term ‘legatee’ is sometimes used by unprofessional persons in a much broader sense than that above stated. It is not infrequently used as synonymous with ‘devisee,’ and such use is sanctioned by lexicographers. Chattels are bequeathed to a legatee, and real estate is devised to a devisee; yet, according to Webster’s Dictionary, the verbs ‘bequeath’ and ‘devise’ are synonyms.” The term “legatee,” as used in a will, may embrace a donee of real property by devise, and there is no reason why the term “legatee,” when used in a deed, may not for the same reason embrace a donee of real property by devise. (Laing v. Barbour, 119 Mass. 523; Den v. Mitchell, 2 Murph. (6 N. C.) 228; Williams v. McComb, 3 Ired. Eq. (38 N. C.) 450; Tucker v. Tucker, 5 Ired. Eq. (40 N. C. 84). The terms, “legatee” and “devisee,” are more strictly interpreted as referring, the one to personalty, and the other to realty, in the construction of statutes than in the construction of wills and deeds. (18 Am. & Eng. Ency. of Law,—2d ed.—p. 821, and cases referred to in notes). In Russell v. Russell, 36 N. Y. 582, a testator by his will gave all his real and personal estate to his wife during her life or widowhood, with remainder to his four children. By a codicil the testator gave power to his wife to sell and dispose of his real estate, or any part thereof, as she should deem most expedient and for the best interests of all his legatees; and it was held that, by the expression “legatees,” the testator intended to designate his four children, whom he had named in the body of the will as those, to whom he devised and bequeathed the residue of his estate, real and personal, after the death of his wife. (18 Am. & Eng. Ency. of Law,—2d ed.—pp. 821, 822, note 1). In Doyle v. Teas, 4 Scam. 202, in speaking of what circumstances should put a subsequent purchaser upon inquiry,, it was said (p. 250) : “It is sufficient if the channels, which would have led him to the truth, were open before him, and his attention so directed that they would have been seen, by a man of ordinary prudence and caution, if he was liable to suffer the consequences of his ignorance. The law will not allow him to shut his eyes when his ignorance is to benefit himself, at the expense of another, when he would have had them open and inquiring, had the consequences of his ignorance been detrimental to himself, and advantageous to the other.”

A purchaser of land is always chargeable with the knowledge of whatever facts are suggested by the recitals in his title papers. If title papers give notice of facts, which would put a reasonably prudent man upon inquiry that would lead to such knowledge, the purchaser is chargeable therewith. (Knowles v. Williams, 58 Kan. 221; 48 Pac. Rep. 856). In the case at bar, the recitals in the deed to Daniel Wei-gel suggested the existence of Katherine Ann Stipp’s will in Lawrence county, Indiana. These recitals gave such notice of the existence of such will, as would have put a reasonably prudent man upon inquiry, and such inquiry would have led to the knowledge of the contents of that will, either as probated in Lawrence county, Indiana, or as recorded hi Macon county, Illinois. Whatever is sufficient to put a subsequent purchaser upon inquiry as to the rights of others must be considered legal notice to him of those rights. (Hatch v. Bigelow, 39 Ill. 546; Babcock v. Lisk, 57 id. 327; Shepardson v. Stevens, 71 id. 646; Bent v. Coleman, 89 id. 364; Citizens’ Nat. Bank v. Dayton, 116 id. 257).

Fourth—Counsel for the appellant, however, insist that Daniel Weigel had a right to rely upon the statement in the recitals of the deed to the effect that Martha A. Green (formerly Martha A. Judah), was “the only heir and legatee of Katherine Stipp.” He was not justified in relying upon the representation of his grantor, that the person named was the only heir and legatee of Katherine Stipp. In Buchanan v. International Bank, 78 Ill. 500, it was said (p. 504) in regard to a party, who claimed to have been an innocent purchaser, that “he had no right to rely upon the representations of Walker in regard to the title to the premises, and, if he saw proper to do so without consulting the record, which was open to his inspection, it was at his own peril.”

Inasmuch, therefore, as there was that in the recitals of the deed, which was sufficient to put Daniel Weigel on inquiry as to the existence of the will in question, and inasmuch as, under the authorities, that, which was sufficient to put him upon inquiry as to the existence of such will, must be considered as legal notice to him thereof, it cannot be said that, under the facts shown by this record, he did not have legal notice of the will of Katherine Ann Stipp, and, this being so, of the existence of a life estate in Martha A. Green, and of an estate of remainder or reversion in appellees, the children of Martha A. Green.

In any view which we can take of this case, we are forced to the conclusion that the judgment of the trial court was correct, and that the present appellees were entitled to recover the possession of the property.

Accordingly, the judgment of the circuit court of Macon county is affirmed.

T , , ~ , Judgment affirmed.