182 N.E. 12 | Ill. | 1932
Carroll C. Clarke filed a bill in the circuit court of Kankakee county for the partition of 120 acres of farm land. The bill, as afterwards amended, alleged that the complainant was the owner in fee as a tenant in common of an undivided one-fifth interest in said lands, subject to the rights of his father, John J. Clarke, as surviving husband of Emeline Clarke, deceased. John J. Clarke died prior to the entry of a decree and no notice of his rights was taken therein. The bill also alleged the interests of all other co-tenants. The complainant is a devisee of Emeline Clarke and claims title through inheritance from his grandfather, Chester Wetmore, and from certain uncles and an aunt. Jane Wetmore, the appellant, by her answer and cross-bill denied that the complainant, or anyone other than herself, has any right or title to the fee in any of the premises but alleged that she is the sole owner thereof. Her claim of ownership is *644 based on a group of facts and circumstances which she contends gives her sole ownership of the lands under sections 1 and 6 of the Statute of Limitations. After a hearing the chancellor entered a decree directing that partition be made of the premises according to the prayer of the amended bill. The cross-bill was dismissed for want of equity. The decree provided that in the event of a subsequent decree for sale an accounting should precede any order of distribution of the proceeds of the sale. From that decree Jane Wetmore has appealed.
Chester Wetmore, the grandfather, acquired title to 80 acres of the land by deed from the Illinois Central Railroad Company in 1865. He died intestate in 1883, leaving three sons and four daughters as his only heirs-at-law. These heirs became vested with the title to said tract as tenants in common by descent. The remaining 40-acre tract was entered by Eleazer Gray under a government patent issued in 1849. Gray and his wife, Rhoda, conveyed it in 1852 to Henry Moe, in whom the title deducible from the government appears to stop. In 1867 Rhoda Shaub (formerly Rhoda Gray) executed a written lease of this tract, with the exception of one-half acre where a dwelling house was located, to Chester Wetmore and his son Warren. The lease was for the term of the life of Rhoda Shaub, who died between 1885 and 1890. In March, 1870, Elizabeth G. Neihardt and her husband, as heirs of Isaac Gray, a brother of the aforesaid Eleazer Gray, executed and delivered a quit-claim deed for the 40-acre tract to Chester and Warren Wetmore. What title the grantor had to convey does not appear, but the record discloses that from 1867 Chester Wetmore and his son Warren were in the undisputed possession of the entire 120 acres and continued in such possession until the death of Chester in 1883. During his life he occupied a residence located on the 80-acre tract. With him lived his daughter Lovisa Ann and his sons Warren and Leonard. Another son, Samuel, had been living *645 in the State of New York prior to 1870, but in that year he and his family came to Illinois and took up their residence on the 40-acre tract. He aided his father and brothers in the farming operations for about two years and then returned to New York. One of the witnesses in the case testified that the Wetmores "bought Sam out" when he moved away. However, there is no written evidence of that fact nor is there anything to show that he claimed any title to the land at that time. After the death of Chester his sons Leonard and Warren continued to occupy the farm. No administration was had upon the estate of the father and nothing was done toward a distribution of his property. Warren and Leonard collected all of the issues and profits of the farm, paid all the taxes, kept up the repairs and made lasting and valuable improvements on the farm. Warren died in 1904, intestate, unmarried and without issue. No administration was had upon his estate nor has there been any division of his property among his heirs. Leonard continued in the exclusive possession of the farm after the death of Warren and until his own death, May 17, 1930. During this period of time he operated the entire farm and made valuable improvements, paid all taxes and assessments, collected all rents, issues and profits, kept insurance on buildings, fenced and tiled the land, and paid out approximately $1715 in discharge of a note and trust deed on the 80-acre tract, executed by his father. In July, 1912, he procured a quit-claim deed from his sister Eveline Exline, which purported to convey the entire farm. He died intestate, leaving the appellant, Jane Wetmore, his widow, and four adult children, as his only heirs-at-law. The children afterwards conveyed all of their interest in the land to their mother, who with certain members of her family have continued to occupy it.
The record does not show that any of the descendants or heirs of Chester Wetmore other than Warren and Leonard, except, perhaps, Eveline Exline, who conveyed to Leonard *646 in 1912, ever made any claim to possession of or title to the land prior to bringing this proceeding, but the record contains substantial evidence that during the period of Leonard's occupancy after the death of his brother Warren he laid claim to ownership of all the farm and that he was locally reputed to be its owner. However, the complainant, Clarke, testified that he had resided in Chicago for twenty-seven years; that he and his wife had visited the farm in 1912 and again in 1917; that while there in 1917 Leonard told him that some day a portion of the land would belong to him as it was a part of his grandfather's estate. The complainant said he took no steps to assert his right or title and made no demand for his share of rents or income, because he was of the belief that his uncle, who was getting old, would ultimately make provision for a just and proper settlement.
We will first consider the appellant's claim of title under section 1 of the Limitations act. The rule is that there must not only be twenty years' continuous, uninterrupted possession, but such possession must be hostile in its inception and so continue. It must be visible, exclusive and notorious, and be acquired and retained under claim of title inconsistent with that of the true owner. All of these elements must concur. (Stowell v. Lynch,
The claim of title under the seven-year Statute of Limitations must now be considered. The appellant relies upon the deed obtained by Leonard Wetmore from his sister Eveline Exline and her husband in 1912. Eveline had no greater interest in either of the two pieces of land than the heirs of any other deceased brother or sister of Leonard. When Leonard obtained a deed from her he was aware of the true state of the title, and he could not make the deed *648
a basis for a claim to color of title. He cannot be considered a purchaser in good faith of the entire title, and his possession under the deed cannot operate as a disseizin of his co-tenants. (Allen v. Allen,
The appellant contends that there can be no partition of the 40-acre tract because the complainant has not shown legal title thereto. It is not required that one must have a complete and perfect record title in order to maintain a partition proceeding. The rule is that he must have a legal title as distinguished from an equitable title. (Kirk v. Kirk,
The appellant contends that the chancellor erred in entering a provisional decree for an accounting because no demand for rent has ever been made. In support of this contentionCooper v. Martin,
It is also insisted that the decree should have directed the commissioners to assign to the appellant that portion of the premises embracing the improvements made by Leonard Wetmore. The rule is, that when improvements have been made by one tenant in common, the portion improved should, if practicable, be assigned to him in the partition of the land, and when such a division cannot be made he should be allowed reasonable remuneration from those who receive the benefits. Where the premises are sold because they are not divisible, the one making the improvements should be allowed the actual increase of the sale price consequent upon such improvements. (SalemNat. Bank v. White,
The appellee's rights are not barred by the Statute of Limitations, and there is no evidence of any conduct or circumstance which would make it inequitable to permit him to assert his title, therefore the claim of laches is untenable.Andrews v. Floyd, supra.
From our consideration of this record we think the decree properly protects the parties interested and correctly decides the issues involved. It will therefore be affirmed.
Decree affirmed.
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