| Ill. | Jan 21, 1890
delivered the opinion of the Court:
As the court decreed against the petitioner as to the east half of the quarter, and as no cross-errors have been assigned, the decree of the court in regard to that tract of land is not involved.
It will be observed that the defendant admitted, in his answer, that Griffith Dickison, during coverture, was seized of the west half of the quarter, except the north-east quarter thereof, and as to that twenty acres it is insisted that the decree is erroneous, because the evidence introduced on the trial fails to show seizin in Griffith Dickison during coverture. No title papers were introduced in evidence, but it was proven that as early as 1835 or 1836, Griffith Dickison settled on the southeast quarter of section 21, which joins the land in controversy on the east, erected a house, and resided there for many years. His son testified that his father first fenced in the farm land, and, as he thinks, as early as 1865 or 1866 he set out his fences inclosing the south-west quarter of section 21. The west half was called the Bussell eighty, and he used it for sheep pasture. The east half of the quarter, or the Biggs eighty, was also used for pasture. It also appears, that Dickison was in possession when he sold to Gordon, and upon the completion of the sale the possession of the premises was transferred to him,—the twenty acres with the balance of the eighty. After the inclosure of the land, in 1865, it was used in connection with and as a part of the farm upon which Dickison resided.
Possession of land under a claim of ownership has always been regarded as evidence of a fee. Davis v. Easley, 13 Ill. 196, is a case in point. In speaking of the rights of a party in possession of a tract of land, the court said: “A parly in the actual possession of land may maintain trespass against a stranger for any disturbance of his possession. The law presumes that he is rightfully in possession, until the contrary appears; and in actions of ejectment, and.for injuries to the inheritance, the possession of a tract of land by a party claiming to be the owner in fee is prima facie evidence of his ownership and seizin of the inheritance, and throws upon his adversary the burden of rebutting the presumption thus raised.” (See, also, Indianapolis and St. Louis Railroad Co. v Cobb, 68 Ill. 54.) Here, the evidence that Dickison was in possession of the land, claiming to own it, and using it as a part of his farm during coverture, and subsequently selling it to the defendant, was evidence that he was seized of a fee, and, in the absence of any rebutting evidence, sufficient, so far as the question under consideration is concerned, to authorize the decree.
On the hearing, the defendant offered to prove, that after Dickison and his wife separated, and after she had commenced the divorce proceeding, she committed adultery; but the evidence was rejected, and the ruling on this question is relied upon as error. At common law, a divorce a vinculo matrimonii bars the claim of dower, for, as said by Kent, (vol. 4, p. 53,) to entitle the party claiming dower, she must have been the wife at the death of the husband. But chapter 41 of our statute, entitled “Dower,” has modified the common law on this subject. Section 14 provides: “If any husband or wife is divorced for the fault or misconduct of the other, except where the marriage was void from the beginning, he or she shall not thereby lose dower, nor the benefit of any such jointure; but if such divorce shall be for his or her own fault or misconduct, such dower or jointure, and any estate granted by the laws of this State in the real or personal estate of the other, shall be forfeited.” Section 15 provides: “If a husband or wife voluntarily leave the other and commit adultery, he or she shall be forever barred of dower and of the benefit of any such jointure, unless they are afterwards reconciled and dwell together.”
It will be observed that section 14, without any qualification or exception whatever,—save only where the marriage was void from the beginning,—preserves the right of dower where the divorce is granted for the fault or misconduct of the other. Here was a decree of divorce wherein the court had determined that the husband had deserted and abandoned his wife without any reasonable cause, and that such abandonment, had continued for a period of two years, and the divorce was granted for the fault and misconduct of the husband. The complainant, by the decree, clearly falls within the terms of section 14, which protects her dower rights, and unless the-offered evidence would bring the case within section 15, supra, the court ruled properly in excluding it.
Section 15 does not provide that where the wife is driven from the home of the husband, and after she is thus driven away, commits adultery, she shall be barred of dower; nor does the statute provide where the wife is deserted and abandoned,, if after such desertion and abandonment she commit adultery, she shall be barred of dower. Such is not its language or proper construction. But, on the other hand, the statute is, if the husband or wife voluntarily abandon the other and commit adultery, then dower may be barred. There was no offer here to show that the wife voluntarily abandoned the husband and committed adultery. Indeed, it may well be doubted whether such proof could be made while the decree of divorce-remained in full force, as the decree was a conclusive determination of the question between the parties. Section 15 of the statute is a wholesome provision of our law, when properly construed. Its object, no doubt, was to impose a penalty,— the forfeiture of dower,—when the husband voluntarily abandoned the wife, or the wife voluntarily abandoned the husband,, and went off with an adulterer.
Perceiving no error in the record, the decree of the circuit-court will be affirmed.
Decree affirmed.