154 Ill. 74 | Ill. | 1894
The evidence shows that Stephen Gosselin, Sr., entered into possession of the lands in the bill described, in 1852, and erected buildings thereon, occupying one as a residence with his family, and claiming ownership of the land. That possession, with claim of ownership, continued until in 1865, when he died, leaving surviving him his widow and children as named in the bill. Possession of land under a claim of ownership has always been regarded as prima facie evidence of title with seizin of the inheritance, and is of itself title in a low degree. (Davis v. Easley et al. 13 Ill. 192; Illinois and St. Louis Railroad and Coal Co. v. Cobb, 68 id. 53; Gordon v. Dickison, 131 id. 141; Record v. Williams et al. 7 Wheat. 237.) Such title, on the death of one in possession under such claim of ownership, will descend in the same way as an absolute, indefeasible estate of inheritance. (Phelan et al. v. Kelly, 25 Wend. 389; Mooney v. Olsen, 21 Kan. 691; Ludlow’s Heirs v. McBride, 3 Ohio, 240.) In the' absence of a will, such estate, whatever it may be, on the death of the ancestor will be cast upon his heirs, and they are to be regarded as having possession by virtue of the descent so cast upon them. Such possession is the seizin of the possessio pedis of the ancestor transferred by operation of law. Phelan et al. v. Kelly, supra; Ludlow’s Heirs v. McBride, supra; Riggs et al. v. Girard et al. 133 Ill. 619.
By section 27, chapter 34, of the Dower act, in force at the time of the death of Stephen Gosselin, Sr., the widow had the right to retain full possession of the dwelling house in which her husband most usually resided next before his death, together with outhouses and plantation thereto belonging, free from molestation and rent until her dower was assigned. This right given the widow did not make her interest hostile to the heirs, (if she had possession by virtue of such statute,) and her delivery of her possession to appellant Stephen Gosselin, Jr., in 1869, could create in him no title hostile to the other heirs. (Riggs et al. v. Girard et al. supra.) And if Stephen Gosselin, Jr., as one of the co-heirs, derived possession from the widow, who was in possession under the Dower act referred to, he would be in possession under the common ancestor as well as through his co-heirs, and under such possession can not dispute their title. Riggs et al. v. Girard et al. supra.
This brings us to the discussion of the question as to the character of the title under which the widow entered. The evidence as to the execution of a will by Stephen Gosselin, Sr.,was before the master, and his report shows a finding that no will was executed. The report in that respect was approved by the court. After a careful examination of the evidence we can reach no different conclusion. The weight of proof shows no will was signed by him, and none appears to have been probated. The paper dictated by him only had reference to his personal estate and funeral, and is entirely too vague and uncertain in its character to be considered sufficient to divest title. No will being shown, and a right of possession existing in the widow at the time of the death of her husband, the ancestor of the parties to the original bill, the presumption can only be indulged that her possession was in accordance with her right to the possession. The evidence is wholly insufficient to overcome such presumption. Her entry and possession were therefore no disseizin of the heirs of her husband, and the possession delivered by her to Stephen Gosselin, Jr., was not hostile to the rights of the heirs. The widow being in possession by virtue of law, and transferring her rights to Stephen Gosselin, Jr., for a valuable consideration, she could confer no greater right than existed in her, and the right in her, under the statute, continued to her death, in 1871. During such time the right of Stephen Gosselin, Jr., continued, and the right to all rents and profits existed in him until the death of the widow. This was a valuable consideration. The receipt by the heirs of the proceeds of the sale of the house given by Stephen to his mother, together with the lot on which it stood, would not bar them from claiming, an interest in the lands inherited -from their ancestor, and could create no estoppel against them, nor amount to an abandonment of the title on their part. Neither would the fact that the complainants furnished no money to aid in defending the title against the city of Chicago in suits brought by it against Stephen Gosselin whilst he was in possession, amount to an abandonment of the title. A tenant in common may, in an accounting with other tenants in common, be allowed for all disbursements for the'recovery, defense or protection of the joint property, but not the expenses in adverse suits between the tenants themselves. (Lewis and Nelson’s Appeal, 67 Pa. St. 153.) The law giving the right of recovery for such expenses will not, for a mere failure to pay such sums, hold it to amount to an abandonment of claim of title.
Appellees assign cross-errors in the refusal of the court to confirm the master’s report in charging appellants with rent of house from 1869 to 1889. We have seen the widow was entitled to the possession and rents and profits as her quarantine right, as it existed under the act in force in 1865, at the time of the death of the ancestor until her dower was assigned, and by an agreement with appellant Stephen Gosselin, Jr., her interest was conveyed to him. No dower ever having been assigned to her, her right to the rents and profits existed until her death, in 1871.
Complainants excepted to the ruling of the court in refusing to allow a charge against appellants for rent of house from 1869 to 1889. During the life of the widow Stephen Gosselin, Jr., was entitled to those rents, so that the exception is not well taken as made, even though the Statute of Limitations was not pleaded.
Prom a careful consideration of the record there is no error in the decree for partition, and no such error in stating the account for which reversal should be had. The decree is affirmed .
Decree affirmed. .
