common.

Mason v. Wingate, supra; Thomas v. Chapin, 274 Ill. 95, 113 N. E. 82; Boyd v. Boyd, 176 Ill. 40, 68 Am. St. Rep. 169, 51 N. E. 782; Biggins v. Dufficy, 262 Ill. 26, 104 N. E. 180; Roberts v. Cox, 259 Ill, 232, 102 N. E. 204; Long v. Morrison, 251 Ill. 143, 95 N. E. 1075; Carpenter v. Fletcher, 239 Ill. 440, 88 N. E. 162; Donason v. Barbero, 230 III. 138, 82 N. E. 620; McMahill v. Torrence, 163 Ill. 277, 45 N. E. 269; Sontag v. Bigelow, 142 Ill. 143, 16 L.R.A. 326, 31 N. E. 674; Ball v. Palmer, 81 Ill. 370; Busch v. Huston, 75 Ill. 343.

Where one tenant in common is in possession of the land, it requires clear and satisfactory proof of a subsequent disseisin before he can establish title by adverse possession against his cotenant.

Sontag v. Bigelow, 142 Ill. 143, 16 L.R.A. 326, 31 N. E. 674; Busch v. Huston, supra; Biggins v. Dufficy, 262 Ill. 26, 104 N. E. 180; Thomas v. Chapin, 274 Ill. 95, 113 N. E. 82; Donason v. Barbero, 230 Ill. 138, 82 N. E. 620.

To constitute disseisin there must be outward acts of exclusive ownership of an unequivocal character,overt and notorious, and of such a nature as, by their own import, to impart information and giye to the cotenants knowledge that an adverse possession and an actual disseisin are intended to be asserted against them.

Thomas v. Chapin, 274 Ill. 95, 113 N. E. 82; Biggins v. Dufficy, 262 Ill. 26, 104 N. E. 180; Roberts v. Cox, 259 Ill. 232, 102 N. E. 204; Long v. Morrison, 251 Ill. 143, 95 N. E. 1075; Carpenter v. Fletcher, 239 Ill. 440, 82 N. E. 162; Sontag v. Bigelow, supra; Ball v. Palmer, 81 Ill. 370; Busch v. Huston, supra.

Husband and wife cannot hold adversely to each other. while residing on the same tract of land.

Sanford v. Finkle, 112 Ill. 146; Hinton v. Farmer, 148 Ala. 211, 121 Am. St. Rep. 63, 42 So. 563; Stiff v. Cobb, 126 Ala. 381, 85 Am. St. Rep. 38, 28 So. 402; Bader v. Dyer, 106 Iowa, 715, 68 Am. St. Rep. 332, 77 N. W. 469; Hovorka v. Havlik, 68 Neb. 14, 110 Am. St. Rep. 387, 93 N. W. 990; McPherson v. McPherson, 75 Neb. 830, 121 Am. St. Rep. 835, 106 N. W. 991; Sibley v. Sibley, Ann. Cas. 1912C, 1170 and note, 88 S. C. 184, 70 S. E. 615; Carpenter v. Booker, 131 Ga. 546, 127 Am. St. Rep. 241, 62 S. E. 983.

Neither husband nor wife can obtain a valid tax title to the real estate of the other by paying taxes on the land, or by purchase thereof at a tax sale.

21 Cyc. 1209, note, 46; Biggins v. Dufficy, 262 Ill. 27, 104 N. E. 180; Boyd v. Boyd, 176 Ill. 40, 68 Am. St. Rep. 169, 51 N. E. 782; Reagle v. Reagle, 179 Pa. 89, 36 Atl. 191; Warner v. Broquet, 54 Kan. 649, 39 Pac. 228, 43 Kan. 48, 19 Am. St. Rep. 124, 22 Pac. 1004; Ward v. Nestell, 113 Mich. 185, 71 N. W. 593; Laton v. Balcom, 64 N. H. 92, 10 Am. St. Rep. 381, 6 Atl. 37.

It is not necessary, to create a less estate than a fee, that there should be express words of limitation, either under the statute or at common law.

Lehndorf v. Cope, 122 Ill. 317, 13 N. E. 505.

Testimony as to oral statements is weak and even "dangerous" evidence, and should always be received with caution.

17 Cyc. 806; Harris v. McIntyre, 118 -Ill. 275, 8 N. E. 182; Bragg v. Geddes, -93 Ill. 39, 5 Mor. Min. Rep. 624; Chicago, B. & Q. R. Co. v. Hazzard, 26 Ill. 382, 2 Am. Neg. Cas. 543; Laurence v. Laurence, 164 Ill. 367, 45 N. E. 1071; Johnson v. Filson, 118 Ill. 219, 8 N. E. 318; Dangerfield v. Hope, 157 Ill. App. 63.

Farmer, J., delivered the opinion of the court:

This is an appeal from a decree for partition. Appellee, Emma F. Allen, filed her bill for the partition of a farm of 240 acres. Appellee and Richard S. Allen and Joseph H. Allen were the only children and heirs at law of Henry P. Allen, who died intestate February 16, 1915. The bill alleged Henry P. Allen at the time of his death was sole owner, in fee simple, of all of the land described except a certain 80 acres known as the Denison 80, and that he owned an undivided five-sixths interest in that tract; that Catherine L. Allen, his wife, owned the other undivided one sixth; that Catherine L. Allen died testate March 21, 1917, and by her will devised her interest in the Denison 80 to appellee. The only controversy is as to the title of the parties to the Denison 80. The bill alleged that each of the children of Henry P. Allen inherited from him five eighteenths of said tract, and appellee acquired by the will of Catherine L. Allen three eighteenths, making her interest eight eighteenths. The Denison 80 originally belonged to Lucius H. Denison, who died intestate in 1882, leaving a widow, who has since died, and Henry L. Denison, Catherine L. Allen, Lockwood D. Denison, Edwin E. Denison, Argil V. Denison, and Herbert W. Denison, his children and only heirs at law. Argil V. Denison died intestate in 1893, leaving a widow, Mary J. Denison, and Perry L. Denison, Ethel Dickey, Ralph Denison, and Ruby Denison, his children and only heirs at law. April 1, 1902, the four surviving children of Lucius H. Denison,Henry L., Herbert W., Edwin E., and Lockwood D. Denison,-also Mary J. Denison, widow of Argil V. Denison, and Perry L. Denison and Ethel Dickey, two of his surviving children,-joined in a warranty deed of the premises to Henry P. Allen. The deed recites that the grantors, Henry L., Herbert W., Edwin E., and Lockwood D. Denison, "with Catherine L. Allen, wife of Henry P. Allen, the grantee herein, are all the surviving children of

Lucius H. Denison, deceased, and Mary J. Denison, widow, and Perry Denison, single, Ethel Dickey, Ralph Denison, and Ruby Denison, children and only heirs at law of Argil V Denison, a deceased son of Lucius H. Denison" (Ralph and RubyDenison being minors and not joining in the deed), are all the heirs at law of Lucius H. Denison. Upon the recommendation of the master in chancery to whom the case was referred, the court entered a decree for partition in accordance with the prayer of the bill, from which decree Richard S. and Joseph H. Allen, the brothers of appellee, appealed to this court.

It is the contention of appellants that the deed to Henry P. Allen in April, 1902, by a part of the owners of the land as tenants in common, conveyed the whole title and estate in fee simple, with covenants of seisin and warranty, under which the grantee entered into possession; that such entry must be deemed adverse to the title and possession of the other cotenants and amounted to a disseisin; that the grantee under said deed took complete and absolute possession, made valuable improvements, paid all taxes, and remained in such possession and control until his death, a period of more than seven years, whereby his title became complete in severalty by virtue of the seven-year Statute of Limitations. The principles relied on by appellants are stated in Burge't v. Taliaferro, 118 Ill. 503, 9 N. E. 334, but that case can have no application to this case. In that case the grantor represented to a third party, to whom the deed was made, that she had obtained deeds from her cotenants for their interest in the property, and that she was the sole owner, and her grantee believed and relied upon the grantor's representations. He intended to and believed he was acquiring complete title. Under the facts, this court held the deed operated as a disseisin of the grantor's cotenants; that it was color of title in good faith in the grantee; and that the

Statute of Limitations barred the cotenants after seven years' possession and payment of taxes by the grantee. In this case Henry P. Allen knew he was not acquiring the entire title. He knew his wife was the owner of an undivided one sixth of the land, and that she did not join in the deed. He knew, also, that Ralph and Ruby Denison, minors, owned an interest in the premises which he did not get. He afterwards acquired their interest through a conveyance from their guardian, but there was no conveyance to him of his wife's interest. He was not a purchaser in good faith of the entire title. While the deed purports to convey title complete, it is evident from its language that the grantors only intended to convey their title, and that it was so understood by the grantee, for the deed shows by its recitals that Catherine L. Allen and Ralph and Ruby Denison are part owners, as

Joint tenantsconveyance by part-disseisin of others.

tenants in common, with the grantors. The deed could not, therefore, operate as a disseisin of them, and the possession taken by the grantee was in no sense hostile or adverse to them.

While in the following cases the facts were not the same as here, the general principles applying where one tenant in common sets up a claim of the entire title by disseisin of his cotenants and hostile possession for seven years are stated: Sontag v. Bigelow, 142 Ill. 143, 16 L.R.A. 326, 31 N. E. 674; Busch v. Huston, 75 Ill. 343; Roberts v. Cox, 259 Ill. 232, 102 N. E. 204; Biggins v. Dufficy, 262 Ill. 26, 104 N. E. 180; Thomas v. Chapin, 274 Ill. 95, 113 N. E. 82; Peabody v. Burri, 255 Ill. 592, 99 N. E. 690.

The proof shows the relations existing between Henry P. Allen and his wife, Catherine, were most agreeable. Mrs. Allen was an invalid from the effects of rheumatism several years before her husband's death, but she kept his books and had authority to draw checks on his

bank account and had access to all her husband's money. The fact that he managed, improved, rented Adverse posthe land, and col- husband of lected rents, did not when not shown. make his posses

session-by

wife's land

sion hostile or adverse to his wife. Sanford v. Finkle, 112 Ill. 146; Gafford v. Strauss, 89 Ala. 283, 7 So. 248, 7 L.R.A. 568, 18 Am. St. Rep. 111 and note; Mason v. Wingate, 275 Ill. 117, 113 N. E. 975. One witness testified on behalf of appellants that he had a talk with Henry P. Allen about selling his farm, when his wife was not present, in which con'versation Allen said he had bought the Denison 80 and was in possession of the whole farm; that later, about 1912, he had another talk with him about selling the farm, in the presence of Mrs. Allen, in which he said he owned the whole farm; that Mrs. Allen said the farm was Allen's and no one else had any claim on it. Mention was made of the Denison 80, and Mrs. Allen said she had no claim on any of the land other than a dower interest as wife. After Allen's death, Mrs. Allen said she had given him a quitclaim deed for her share in the land. No one else was present at any of the conversations, and that was the only proof upon that subject. No such deed was on record, and there was no other proof that any deed was ever made by Mrs. Allen, and there was no proof of its delivery. Such proof was insuffi- ment as to title cient to prevail over the record title. Johnson v. Filson, 118 Ill. 219, 8 N. E. 318.

Records-effect of parol state

upon.

effect of finding errone

Appeal ous view of law.

2. The reviewing court is not bound by the finding of the trial court on

oral evidence, where its decree is based upon an erroneous view of the law as applied to the facts.

Statement by Gardner, J.:

Bill by appellee against one Wilson Childress and E. R. Dew, seeking a sale of 55 acres of land therein described for division among the parties as tenants in common, and filed in June, 1920. Respondent Respondent Wilson Childress answered, admitting the averments. Appellant, Dew, in his answer denied the joint ownership of the land, but asserted title in himself. Complainant contended that the land was given to one Pollard Childress by one David Avery though no deed seems to have been executed; that Pollard Childress remained in possession of the

land for a long number of years, and that he owned the same; that at his death he left four children, one of whom died without issue, another died leaving a child Wilson Childress, respondent to this suit, and Ellen Garner, who is complainant, and Celeste Childress. After the death of Pollard Childress, Celeste Childress was the only member of the family to remain on the place, and she lived there with a man named Robert Cox.

On November 20, 1901, Robert Cox and Celeste Childress executed a mortgage to the appellant, Dew, purporting to convey the entire fee

simple interest in the lands here involved. The evidence shows that these parties were in possession at the time, claiming the property as their own. This mortgage was foreclosed, and deed made to one Cad Jones by the mortgagee April 16, 1904, and on the same date said Jones reconveyed the property to the mortgagee, Dew. The mortgage of Cox and Celeste Childress was recorded on the day of its execution, and the two deeds above referred to were filed for record in the probate office on May 9, 1906. The evidence for the respondent Dew, appellant here, was to the effect. that since the execution of the deed of April 6, 1904, he has been in the continuous, open, adverse possession of the property under these deeds, claiming the same as his own, exercising exclusive control and dominion over the land, cultivating a portion of it continuously, using another portion for pasturage, paying the taxes on the property, and selling the timber thereon; that he had built a house and also cut ditches.

The court below decreed that appellant, Dew, was a tenant in common with the other parties to the cause, and ordered a sale of the land for division. From this decree respondent, Dew, has prosecuted this appeal.

Mr. R. B. Evans, for appellant:

Where real estate is held in common, and one tenant assumes to convey the entire estate, and conveys it by metes and bounds, the deed will give color of title as to the whole tract, and an entry by the purchaser thereunder, claiming title to the whole, will operate as an actual ouster and disseisin of the cotenant.

2 C. J. p. 185, § 355; Street v. Collier, 118 Ga. 470, 45 S. E. 294; Culler v. Motzer, 13 Serg. & R. 356, 15 Am. Dec. 604; Joyce v. Dyer, 189 Mass. 64, 109 Am. St. Rep. 603, 75 N. E. 81; Riggs v. Fuller, 54 Ala. 141; Fielder v. Childs, 73 Ala. 567; Cooper v. Watson, 73 Ala. 252.

Mr. Thomas E. Knight for appellee.

Gardner, J., delivered the opinion of the court:

The statement of the case will contain a sufficient outline for a proper understanding of the question here presented.

Appellant, Dew, defended this bill for sale for division upon the theory that he was not a tenant in common with the other parties to the cause, but owned the land in severalty, and had acquired a perfect title thereto by adverse possession under color of title. The mortgage from Celeste Childress, one of the heirs of Pollard Childress, and Robert Cox, executed in 1901 to this appellant, purported to convey the entire interest and fee-simple title in and to the land. They were in possession, and the evidence was without dispute they claimed to own the same. The mortgage was duly foreclosed, and the deeds evidencing the transaction were recorded in 1906, and since the date of the execution of these deeds the evidence is without dispute that appellant has been in the continuous, open, adverse possession of the land, claiming the same as his own, and without any recognition of the rights of anyone else thereto.

The principle of law controlling the case under these circumstances is found stated in Riggs v. Fuller, 54 Ala. 141, where the court, speaking to an analogous situation, said: "The grantor was one of the heirs to whom the lands had descended. A sale and conveyance by him of the entire fee to a stranger, who takes possession claiming the exclusive title, operates a disseisín of the other heirs, and converts the possession of the stranger into an adverse mon-effect of possession, which, conveyance by if continued the length of time prescribed by the Statute of Limitations, will bar the entry of the other heirs."

Tenant in com

coheir.

The holding of this court in the Riggs Case, supra, is supported by the overwhelming weight of authority. Mr. Freeman in his note to the case of Joyce v. Dyer, 109 Am. St. Rep. 603, says: "There is little, if any, dissent from the proposition