| Ill. | Jun 16, 1903
delivered the opinion of the court:
The contention of defendants in error that they are innocent purchasers, without notice of any claim of title by any one else, cannot be sustained. At the time Edmund Shea received his deed from B. J. Horrell for an eighty-acre tract, which includes the ten acres in controversy, the deed from Thomas Horrell to John Dewitt was on record and notice to all subsequent purchasers of rights acquired thereunder, and the record was prima facie evidence of the delivery of the deed to the grantee therein named, and whoever questions it must assume the burden of proving that it was not delivered. (Valter v. Blavka, 195 Ill. 610" date_filed="1902-04-16" court="Ill." case_name="Valter v. Blavka">195 Ill. 610; Harshbarger v. Carroll, 163 id. 636; Warren v. Town of Jacksonville, 15 id. 236.) The only evidence in the record on this point is the admission of the plaintiffs in error, the children of the grantee, that they had never had the deed, and the statement of B. J. Horrell, an interested party, that he received the Dewitt deed from Thomas Horrell at the same time he received from him the deed to the eighty-acre tract which he has deeded to the defendants in error. For the purposes of this case it is unnecessary for us to pass upon the question of the competency of B. J. Horrell as a witness, for, conceding his competency, there is no evidence in the record sufficient to overcome the presumption of delivery arising from the record. Such a conclusion would be a mere supposition arising from the circumstance that the deed is found in the possession of the grantor and that possession not explained.
Defendants in error further contend that their title is good by limitation; that their grantor, B. J. Horrell, had adverse possession of the premises for more than forty years. At the time of his death, in 1851, John Dewitt was occupying the disputed premises under his deed from Thomas Horrell, and afterward his widow continued to occupy them until her death, in 1898. Under the statutes in relation to dower then in force, what is known as the “widow’s quarantine" gave to the widow the right to retain “full possession of the dwelling house in which her husband most usually dwelt, together with the outhouses and plantation thereto belonging, free from molestation and rent until her dower is assigned.” Mrs. Dewitt’s dower never was assigned, and under the statute she was invested with the right of possession of the premises in controversy, which right continued until her death, in 1896. This right accrued to her six years prior to B. J. Horrell’s deed and three years prior to his marriage with Mrs. Dewitt, and was defeasible only upon assignment of dower. (Riggs v. Girard, 133 Ill. 619" date_filed="1890-06-12" court="Ill." case_name="Riggs v. Girard">133 Ill. 619; Reuter v. Stuckart, 181 id. 529.) When B. J. Horrell married Mrs. Dewitt he went into occupancy of the premises with her, and they both continued in occupancy thereof until her death. Her possession could never become adverse to that of her children, the plaintiffs in error; (Reuter v. Stuckart, supra;) and the possession of B. J. Horrell, even after receiving a deed to lands including the premises in controversy, in the absence of evidence to the contrary, does not seem to have been that exclusive, adverse possession, hostile in its inception, which is necessary to create a title by limitation. There is no evidence that the mother of plaintiffs in error ever turned over possession of the premises to B. J. Horrell. She simply married him and continued her possession as before, the children remaining at home until they were grown up. He would naturally appear to be the head of the house and in control of the premises, but to hold that he thereby came into adverse possession would be to require each child, on coming of age, to dispossess the mother and break up the family relations. And the fact that he paid taxes and made improvements on the premises gave him no interest therein. Reuter v. Stuckart, supra.
We are of the opinion, for the reasons stated, that the circuit court erred in its judgment, and the case will therefóre be remanded to that court for further proceedings in accordance herewith.
Reversed and remanded.