65 Ill. App. 124 | Ill. App. Ct. | 1896
delivered the opinion oe the Court.
This is an appeal from a judgment for defendant in an action, of forcible detainer, brought under the third clause of Sec. 2, Ch. 57, which provides that the person entitled to possession may be restored thereto when entry is made into vacant or unoccupied lands or tenements without right or title. The ownership of land carries with it the right to possession and the only question here is whether the appellant made sufficient prima facie proof of ownership. It was proved that one Madden was in possession of a tract of which this is a part for some years, at least seven or eight, and then laid out the tract into lots as an addition to the town of Clinton, and that he conveyed the lot by warranty deed to the grantors of the appellant.
It has been repeatedly held in this State that possession of land, claiming it in fee, is prim,a facie evidence of such ownership, and as was said in DeWitt v. Bradbury, 94 Ill. 446, “ it is not at all necessary that such a claim should be expressed in words.” There the possessor cultivated and improved the land, and by his will designating it as his home place, devised it to his wife. Here we have coupled with possession the act of laying out into town lots, thereby dedicating to the public in fee the portions marked as streets and alleys. This action is that of a man who claims the absolute dominion of the land. True, a man asserting a lesser claim might make such a plat, but it is quite unlikely, and it is to be presumed that one who assumes thus to treat a parcel of land claims such a title thereto as would justify him in so doing. After having made such plat he conveyed the lot in question by warranty deed in which he distinctly asserted his title and covenanted to defend the same to the grantee, his heirs and assigns, against all the world. In Massachusetts it is held that such a deed raises presumption of title in the grantor. Town v. Butterfield, 97 Mass. 105; Farwell v. Rogers, 99 Mass. 35; Newell on Ejectment, 433, Sec. 13.
Prior possession alone is evidence of a fee, and although the lowest, until rebutted by a higher, it must prevail. Herbert v. Herbert, Breese R. 278; Keith v. Keith, 104 Ill. 397. In Adamson Ejectment, 4th Ed., 137, it is said:
“ It has already been observed that possession is prima faoie evidence of ownership, and as between two parties who rely upon possession solely, the presumption of ownership is in favor of the first possessor, so that proof of possession by ' a claimant, however short, will entitle him to recover unless the defendant can account for such possession or show a prior possession or title in himself or a third person.”
See same author, page 324, Gr. on Ev., Vol. 2, Sec. 309.
¥e are of opinion the judgment is erroneous. It will therefore be reversed and the cause remanded.
