페이지 이미지
PDF
ePub

The facts are stated in the opinion of the court.

Mr. Frank J. Bowman for appel- Thomas v. Chapin, 274 Ill. 95, 113 lants.

N. E. 82; Biggins v. Dufficy, 262 Ill. Messrs. McCalmont & Ramsay and 26, 104 N. E. 180; Roberts v. Cox, 259 Doerfler, Bender, & McIntyre, for ap- Ill. 232, 102 N. E. 204; Long v. Morripellee:

son, 251 Ill. 143, 95 N. E. 1075; CarA purchaser with knowledge of the penter v. Fletcher, 239 Ill. 440, 82 N. facts cannot rely upon his deed as E. 162; Sontag v. Bigelow, supra; Ball color of title.

v. Palmer, 81 Ill. 370; Busch v. HusMason v. Wingate, 275 Ill. 117, 113 ton, supra. N. E. 975.

Husband and wife cannot hold adThe policy of the law is that no ten- versely to each other. while residing ant in possession for the benefit of all on the same tract of lana. the cotenants can in any manner ac- Sanford v. Finkle, 112 Ill. 146; Hinquire color of title that will ripen into ton v. Farmer, 148 Ala. 211, 121 Am. a bar against his cotenants under the St. Rep. 63, 42 So. 563; Stiff v. Cobb, seven-year Statute of Limitations. 126 Ala. 381, 85 Am. St. Rep. 38, 28

Carpenter v. Fletcher, 239 Ill. 440, So. 402; Bader v. Dyer, 106 Iowa, 715, 88 N. E. 162; Donason v. Barbero, 230 68 Am. St. Rep. 332, 77 N. W. 469; Ill. 138, 82 N. E. 620; Sontag v. Bige- Hovorka v. Havlik, 68 Neb. 14, 110 low, 142 Ill. 143, 16 L.R.A. 326, 31 Am. St. Rep. 387, 93 N. W. 990; McN. E. 674.

Pherson v. McPherson, 75 Neb. 830, The mere possession of one tenant, 121 Am. St. Rep. 835, 106 N. W. 991; in common, payment of taxes, and ap- Sibley v. Sibley, Ann. Cas. 1912C, propriation of rents by him, cannot be 1170 and note, 88 S. C. 184, 70 S. E. set up as a bar against a cotenant in 615; Carpenter v. Booker, 131 Ga. common.

546, 127 Am. St. Rep. 241, 62 S. E. Mason v. Wingate, supra; Thomas 983. V. Chapin, 274 Ill. 95, 113 N. E. 82; Neither husband nor wife can obBoyd v. Boyd, 176 Ill. 40, 68 Am. St. tain a valid tax title to the real estate Rep. 169, 51 N. E. 782; Biggins v. of the other by paying taxes on the Dufficy, 262 Ill. 26, 104 N. E. 180; land, or by purchase thereof at a tax Roberts v. Cox, 259 Ill, 232, 102 N. E. sale. 204; Long v. Morrison, 251 Ill. 143, 95 21 Cyc. 1209, note, 46; Biggins v. N. E. 1075; Carpenter v. Fletcher, 239 Dufficy, 262 Ill. 27, 104 N. E. 180; Boyd Ill. 440, 88 N. E. 162; Donason v. Bar- v. Boyd, 176 Ill. 40, 68 Am. St. Rep. bero, 230 Ill. 138, 82 N. E. 620; Mc- 169, 51 N. E. 782; Reagle v. Reagle, Mahill v. Torrence, 163 Ill. 277, 45 N. 179 Pa. 89, 36 Atl. 191; Warner v. E. 269; Sontag v. Bigelow, 142 Ill. Broquet, 54 Kan. 649, 39 Pac. 228, 43 143, 16 L.R.A. 326, 31 N. E. 674; Ball Kan. 48, 19 Am. St. Rep. 124, 22 Pac. v. Palmer, 81 Ill. 370; Busch v. Hus- 1004; Ward v. Nestell, 113 Mich. 185, ton, 75 Ill. 343.

71 N. W. 593; Laton v. Balcom, 64 N. Where one tenant in common is in H. 92, 10 Am. St. Rep. 381, 6 Atl. 37. possession of the land, it requires It is not necessary, to create a less clear and satisfactory proof of a sub- estate than a fee, that there should sequent disseisin before he can be express words of limitation, either tablish title by adverse possession

under the statute or at common law. against his cotenant.

Lehndorf v. Cope, 122 Ill. 317, 13 N. Sontag v. Bigelow, 142 Ill. 143, 16 E. 505. L.R.A. 326, 31 N. E. 674; Busch v. Testimony as to oral statements is Huston, supra; Biggins v. Dufficy, 262 weak and even "dangerous" evidence, Ill. 26, 104 N. E. 180; Thomas V. and should always be received with Chapin, 274 Ill. 95, 113 N. E. 82; caution. Donason v. Barbero, 230 Ill. 138, 82 17 Cyc. 806; Harris v. McIntyre, 118 N. E. 620.

Ill. 275, 8 N. E. 182; Bragg v. Geddes, To constitute disseisin there must -93 Ill. 39, 5 Mor. Min. Rep. 624; Chibe outward acts of exclusive owner

cago, B. & Q. R. Co. v. Hazzard, 26 Ill. ship of an unequivocal character,

382, 2 Am. Neg. Cas. 543; Laurence v. overt and notorious, and of such a

Laurence, 164 ml. 367, 45 N. E. 1071; nature as, by their own import, to im

Johnson v. Filson, 118 Ill. 219, 8 N. E.

318; Dangerfield v. Hope, 157 Ill. App. part information and give to the co

63. tenants knowledge that an adverse possession and an actual disseisin are Farmer, J., delivered the opinion intended to be asserted against them.

of the court:

es

(292 Ill. 453, 127 N. E. 85.) This is an appeal from a decree Lucius H. Denison, deceased, and for partition. Appellee, Emma F. Mary J. Denison, widow, and Perry Allen, filed her bill for the partition Denison, single, Ethel Dickey, Ralph of a farm of 240 acres. Appellee Denison, and Ruby Denison, children and Richard S. Allen and Joseph H. and only heirs at law of Argil V. Allen were the only children and Denison, a deceased son of Lucius: heirs at law of Henry P. Allen, who H. Denison" (Ralph and Ruby died intestate February 16, 1915. Denison being minors and not joinThe bill alleged Henry P. Allen at ing in the deed), are all the heirs at the time of his death was sole own- law of Lucius H. Denison. Upon er, in fee simple, of all of the land the recommendation of the master described except a certain 80 acres in chancery to whom the case was known as the Denison 80, and that referred, the court entered a decree he owned an undivided five-sixths for partition in accordance with the interest in that tract; that Catherine prayer of the bill, from which deL. Allen, his wife, owned the other cree Richard S. and Joseph H. Allen, undivided one sixth; that Catherine the brothers of appellee, appealed to L. Allen died testate March 21, 1917, this court. and by her will devised her interest It is the contention of appellants in the Denison 80 to appellee. The that the deed to Henry P. Allen in only controversy is as to the title of April, 1902, by a part of the owners the parties to the Denison 80. The of the land as tenants in common, bill alleged that each of the children conveyed the whole title and estate of Henry P. Allen inherited from in fee simple, with covenants of him five eighteenths of said tract, seisin and warranty, under which and appellee acquired by the will of the grantee entered into possession; Catherine L. Allen three eighteenths, that such entry must be deemed admaking her interest eight eight- verse to the title and possession of eenths. The Denison 80 originally the other cotenants and amounted belonged to Lucius H. Denison, who to a disseisin; that the grantee undied intestate in 1882, leaving a der said deed took complete and abwidow, who has since died, and solute possession, made valuable imHenry L. Denison, Catherine L. Al- provements, paid all taxes, and relen, Lockwood D. Denison, Edwin mained in such possession and conE. Denison, Argil V. Denison, and trol until his death, a period of more Herbert W. Denison, his children than seven years, whereby his title and only heirs at law. Argil V. became complete in severalty by Denison died intestate in 1893, leav- virtue of the seven-year Statute of ing a widow, Mary J. Denison, and Limitations.

Limitations. The principles relied

. Perry L. Denison, Ethel Dickey, on by appellants are stated in BurRalph Denison, and Ruby Denison, ge't v. Taliaferro, 118 Ill. 503, 9 his children and only heirs at law. N. E. 334, but that case can have no April 1, 1902, the four surviving application to this case. In that children of Lucius H. Denison, case the grantor represented to a Henry L., Herbert W., Edwin E., third party, to whom the deed was and Lockwood D. Denison, also made, that she had obtained deeds Mary J. Denison, widow of Argil V. from her cotenants for their interDenison, and Perry L. Denison and est in the property, and that she was Ethel Dickey, two of his surviving the sole owner, and her grantee bechildren,-joined in

in a warranty lieved and relied upon the grantor's deed of the premises to Henry P. representations. He intended to and Allen. The deed recites that the believed he was acquiring complete grantors, Henry L., Herbert W., title. Under the facts, this court Edwin E., and Lockwood D. Denis held the deed operated as a disson, "with Catherine L. Allen, wife seisin of the grantor's cotenants; of Henry P. Allen, the grantee here- that it was color of title in good in, are all the surviving children of faith in the grantee; and that the

Statute of Limitations barred the co- bank account and had access to all tenants after seven years' posses

her husband's money.

The fact sion and payment of taxes by the that he managed, grantee. In this case Henry P. Al improved, rented Adverse pos

session-by len knew he was not acquiring the the land, and col- husband entire title. He knew his wife was lected rents, did not when not shown.

wife's landthe owner of an undivided one sixth make his possesof the land, and that she did not join sion hostile or adverse to his wife. in the deed. He knew, also, that Sanford v. Finkle, 112 Ill. 146; GafRalph and Ruby Denison, minors, ford v. Strauss, 89 Ala. 283, 7 So. owned an interest in the premises 248, 7 L.R.A. 568, 18 Am. St. Rep. which he did not get. He after- 111 and note; Mason v. Wingate, 275 wards acquired their interest Ill. 117, 113 N. E. 975. One witness through a conveyance from their testified on behalf of appellants that guardian, but there was no convey- he had a talk with Henry P. Allen ance to him of his wife's interest. about selling his farm, when his He was not a purchaser in good wife was not present, in which confaith of the entire title. While the 'versation Allen said he had bought deed purports to convey title com- the Denison 80 and was in possesplete, it is evident from its language sion of the whole farm; that later, that the grantors only intended to about 1912, he had another talk with convey their title, and that it was him about selling the farm, in the so understood by the grantee, for presence of Mrs. Allen, in which he the deed shows by its recitals that said he owned the whole farm; that Catherine L. Allen and Ralph and Mrs. Allen said the farm was AlRuby Denison are part owners, as Ten's and no one else had any claim tenants in common,

on it.

Mention was made of the Joint tenants with the grantors. Denison 80, and Mrs. Allen said she conveyance by

The deed could not, had no claim on any of the land part-disseisin of

therefore, operate other than a dower interest as wife.

as a disseisin of After Allen's death, Mrs. Allen said them, and the possession taken by she had given him a quitclaim deed the grantee was in no sense hostile for her share in the land. No one or adverse to them.

else was present at any of the conWhile in the following cases the versations, and that was the only facts were not the same as here, the proof upon that subject. No such general principles applying where deed was on record, and there was one tenant in common sets up a no other proof that any deed was claim of the entire title by disseisin ever made by Mrs. Allen, and there of his cotenants and hostile posses- was no proof of

Records-effect sion for seven years are stated : its delivery. Such of parol state.. Sontag v. Bigelow, 142 Ill. 143, 16 proof was insuffi- ment as to title L.R.A. 326, 31 N. E. 674; Busch v. cient to prevail over Huston, 75 Ill. 343; Roberts v. Cox, the record title. Johnson v. Filson, 259 Ill. 232, 102 N. E. 204; Biggins 118 Ill. 219, 8 N. E. 318. v. Dufficy, 262 Ill. 26, 104 N. E. 180; That appellee and her brother, Thomas v. Chapin, 274 Ill. 95, 113 Richard S. Allen, as administrators N. E. 82; Peabody v. Burri, 255 of Henry P. Allen's estate, invenIll. 592, 99 N. E. 690.

toried the entire farm, including the The proof shows the relations ex- Denison 80, as the isting between Henry P. Allen and property of Henry Estoppel-of his wife, Catherine, were most P. Allen, is of no im- inventorying

property as that agreeable. Mrs. Allen was an in- portance in the decivalid from the effects of rheumatism sion of this case. several years before her husband's Catherine L. Allen inherited one death, but she kept his books and sixth of the Denison 80 from her had authority to draw checks on his father, and she never parted with

others.

upon.

of others.

(292 III. 453, 127 N. E. 85.) her title to anyone. Her husband could not ripen into a title to the acquired, by purchase from the oth- whole by the Statute of Limitations. er heirs of Lucius H. Denison, their

The decree is affirmed. interest; but he knew at the time he

NOTE. received the deed his wife owned one

Possession by one claiming under or sixth of the 80 and that her interest

through deed or mortgage by a codid not pass to him by the convey

tenant as adverse to

other COance from her cotenants. His pos- tenants is the subject of the annotasession, as we have said, was not tion following DEW v. GARNER, post, hostile or adverse to his wife, and 8.

E. R. DEW, Appt.,

v.
ELLEN GARNER.

Alabama Supreme Court - April 20, 1922,

(207 Ala. 353, 92 So. 647.)

Tenant in common – effect of conveyance by coheir.

1. The conveyance by one of several heirs of the fee of real estate of his ancestor to a stranger, who takes possession, is a disseisin of the other heirs, so that continued possession for the statutory period will ripen into title.

[See note on this question beginning on page 8.] Appeal — effect of finding errone- oral evidence, where its decree is ous view of law.

based upon an erroneous view of the 2. The reviewing court is not bound law as applied to the facts. by the finding of the trial court on

APPEAL by defendant from a decree of the Circuit Court for Hale County (Miller, J.) in favor of plaintiff in a suit for the sale of certain land for division among the parties as tenants in common. Reversed. Statement by Gardner, J.:

land for a long number of years, and Bill by appellee against one Wil- that he owned the same; that at his son Childress and E. R. Dew, seek- death he left four children, one of ing a sale of 55 acres of land there- whom died without issue, another in described for division among the died leaving a child Wilson Childparties as tenants in common, and ress, respondent to this suit, and filed in June, 1920. Respondent

Respondent Ellen Garner, who is complainant, Wilson Childress answered, admit- and Celeste Childress. After the ting the averments. Appellant, death of Pollard Childress, Celeste Dew, in his answer denied the joint Childress was the only member of ownership of the land, but asserted the family to remain on the place, title in himself. Complainant con- and she lived there with a man tended that the land was given to named Robert Cox. one Pollard Childress by one David On November 20, 1901, Robert Avery though no deed seems to have Cox and Celeste Childress executed been executed; that Pollard Child- a mortgage to the appellant, Dew, ress remained in possession of the purporting to convey the entire feesimple interest in the lands here in- The statement of the case will volved. The evidence shows that contain a sufficient outline for a these parties were in possession at proper understanding of the questhe time, claiming the property as tion here presented. their own. This mortgage was fore- Appellant, Dew, defended this bill closed, and deed made to one Cad for sale for division upon the theory Jones by the mortgagee April 16, that he was not a tenant in com1904, and on the same date said mon with the other parties to the Jones reconveyed the property to cause, but owned the land in severalthe mortgagee, Dew. The mortgage ty, and had acquired a perfect title of Cox and Celeste Childress was thereto by adverse possession under recorded on the day of its execution, color of title. The mortgage from and the two deeds above referred to Celeste Childress, one of the heirs were filed for record in the probate of Pollard Childress, and Robert Cox, office on May 9, 1906. The evidence executed in 1901 to this appellant, for the respondent Dew, appellant purported to convey the entire inhere, was to the effect. that since the terest and fee-simple title in and to execution of the deed of April 6, the land. They were in possession, 1904, he has been in the continuous, and the evidence was without disopen, adverse possession of the pute they claimed to own the same. property under these deeds, claiming The mortgage was duly foreclosed, the same as his own, exercising ex- and the deeds evidencing the transclusive control and dominion over action were recorded in 1906, and the land, cultivating a portion of it since the date of the execution of continuously, using another portion these deeds the evidence is without for pasturage, paying the taxes on dispute that appellant has been in the property, and selling the timber the continuous, open, adverse posthereon; that he had built a house

session of the land, claiming the and also cut ditches.

same as his own, and without any The court below decreed that ap- recognition of the rights of anyone pellant, Dew, was a tenant in com- else thereto. mon with the other parties to the The principle of law controlling cause, and ordered a sale of the the case under these circumstances land for division. From this decree is found stated in Riggs v. Fuller, respondent, Dew, has prosecuted 54 Ala. 141, where the court, speakthis appeal.

ing to an analogous situation, said: Mr. R. B. Evans, for appellant:

“The grantor was one of the heirs

to whom the lands had descended. Where real estate is held in common, and one tenant assumes to con

A sale and conveyance by him of the vey the entire estate, and conveys it

entire fee to a stranger, who takes by metes and bounds, the deed will possession claiming the exclusive give color of title as to the whole title, operates a disseisin of the othtract, and an entry by the purchaser er heirs, and converts the possesthereunder, claiming title to the sion of the stranger whole, will operate an actual

into an adverse ouster and disseisin of the cotenant.

possession, 2 C. J. p. 185, § 355; Street v. Col

which, conveyance by

if continued the lier, 118 Ga. 470, 45 S. E. 294; Culler v. Motzer, 13 Serg. & R. 356, 15 Am.

length of time prescribed by the Dec. 604; Joyce v. Dyer, 189 Mass. 64,

Statute of Limitations, will bar the 109 Am. St. Rep. 603, 75 N. E. 81; entry of the other heirs." Riggs v. Fuller, 54 Ala. 141; Fielder The holding of this court in the v. Childs, 73 Ala, 567; Cooper v. Wat- Riggs Case, supra, is supported by son, 73 Ala. 252. Mr. Thomas E. Knight for appellee. ity. Mr. Freeman in his note to the

the overwhelming weight of author

case of Joyce v. Dyer, 109 Am. St. Gardner, J., delivered the opinion Rep. 603, says: “There is little, if of the court:

any, dissent from the proposition

as

Tenant in common-effect of

« 이전계속 »