| Ill. | Nov 13, 1884
delivered the opinion of the Court:
When this ease was before us at a former term, (see 92 Ill. 249" date_filed="1879-06-15" court="Ill." case_name="Gill v. Grand Tower Mining, Manufacturing & Transportation Co.">92 Ill. 249,) we held that the clause in the will of James Gill directing sixty acres of his home place, known as the “oven farm, ” or the “devil’s oven, ” to be laid out into town lots, without locating the same, or fixing the dimensions of the lots, or appointing any one to divide the land and lay out the lots, was void for uncertainty, and that such sixty acres being excepted from the devise of the home farm, descended to the testator’s heirs at law as intestate estate. The balance of the farm having been devised to his two sons, George W. and Napoleon B. Gill, they took an undivided interest in the whole tract, as tenants in common, with all the heirs of the testator in respect to the unlocated sixty acres. George W. and Napoleon B. Gill, on the death of their father took two distinct interests in the home place. They took, as devisees, one hundred and forty-five acres out of the whole two hundred and five acres, and, each, one-sixth of the remaining sixty acres. Each one of them acquired the right to have set off to him, in severalty, one-sixth of sixty acres of the tract and one-half of the residue.
Napoleon B. Gill having acquired, by conveyances, the interest of his brother, George W. Gill, and the'interests of his sisters, Eliza Elvira Smith and Maria Louisa Gottschalk, in the home place, consisting of nearly two hundred and five acres, on September 17, 1845, by his warranty deed, conveyed to Herod M. Jenkins the entire place, with this exception: “Except twenty acres, which is reserved to satisfy the claim or claims which the heirs of Nancy Louisiana Gill, daughter and one of the heirs of James Gill, and also Cyrus Theodore McClintock, son and only heir of Narcena Emeline McClintock, who was also a daughter and one of the heirs of James Gill, ” etc. From the words of the exception, viewed in the light of the facts then before the minds of the parties, it is evident it was intended by this conveyance to transfer the entire interest in the farm except in sixty acres thereof, and as to that, to pass the undivided two-thirds thereof only,— in other words, it was the intention that the shares or interest which would have belonged to the grantor’s two sisters, Narcena Emeline McClintock and Nancy Louisiana Gill, if living, should be excepted from- the grant, these interests being one-third, or "twenty out of the sixty acres. The covenants of warranty in this deed are to be limited to the estate conveyed, and can not be extended to apply to the part excepted or reserved. It is clear that Napoleon B. Gill conveyed only the interest or estate he at that time had in the farm, which was all the land, except an undivided twenty acres in the same.
On the receipt of his deed, Herod M. Jenkins went into the exclusive possession and occupancy of the entire farm, which continued until his death, in January, 1847. On his death his son, Thomas W. Jenkins, succeeded to the possession, which he held until November 28, 1865, when he conveyed the same to the Mt. Carbon Coal and Railroad Company, — ■ then the name of the present appellant, the name having, since such conveyance, been changed by an act of the legislature. By these conveyances the appellant became seized of the same estate and interest in the entire farm as Napoleon B. Gill had when he conveyed to Herod M. Jenkins, leaving outstanding the interests of the several heirs of Narcena Emeline McClintoek and Nancy Louisiana Gill, deceased, in an undivided twenty acres thereof.
Various objections are made to the proceedings below, as ground for reversal, the most material of which will be noticed.
• The first error assigned is in allowing James Riley McOlintock to be joined as a co-petitioner in the amended and supplemental petitions, and it is said, “he could only become a party to the pending suit by his appearance, and answer to the petition, and by asserting his rights, if any he claimed, by way of interpleader. ” If he has any title or other interest in the premises he is a necessary party, either as a plaintiff or defendant, and it can make no difference to the appellant whether he is made the one or the other. It is made the duty of the court to ascertain and declare the rights, titles and interests of all the parties, whether plaintiffs or defendants, and “give such judgment as may be required by the rights of the parties.” This being so, it is immaterial to the appellant whether McClintoek’s interest in the premises be adjudged to him as a plaintiff or a defendant. Aside from this, under the statute allowing amendments and the making of new parties, there was no error in allowing the amendment of the petition by making a new party. Rev. Stat. 1874, chap. 110, see. 23.
The appellant having acquired all the title it has to the premises through James Gill, and still holding under him alone, can not be heard to dispute that title. James Gill is shown to be a common source of title, under whom, alone, both parties claim, and this renders it unnecessary to show title in him. The same rule applies to the several conveyances of the heirs and devisees of James Gill to Napoleon B. Gill, made prior to his deed to Herod M. Jenkins, which was made September 17, 1845. Ever since that date Jenkins, and appellant, after Jenkins’ son’s deed, have held and enjoyed the undisturbed and undisputed possession and use of the land under the deeds of Gill’s heirs. Possession under a deed purporting on its face to convey title to real estate, by a party claiming under the same, is adverse to the party making such deed. Under the circumstances of this case, the heirs- who conveyed to Napoleon B. Gill prior to 1845, and suffered him and his assigns to take and hold peaceable and exclusive possession of the land, are barred by the Statute of Limitations. But even if .they were not, they have never made any claim to the interests they conveyed, and do not now assert any. Having gone into possession 'under the deeds of three of thb heirs of James Gill to Napoleon B. Gill, and under his deed, the appellant can not be heard to say that it has not acquired the title it has so long claimed, while still holding under such deeds.
It is also urged that the court below erred in allowing the record of the will of James Gill in evidence, for the reason, among others, that it does not appear from the evidence that it was attested by two subscribing witnesses. The original will and the record of its probate were destroyed by fire. Under the special act of February 1, 1843, (Laws 1842-3, page 205,) to provide for the restoration of records destroyed by the fire, a commission was appointed, before whom proceedings were taken to prove this will and make a record thereof. The board of commissioners accepted the proof offered before it, as sufficient, and ordered the paper presented to it, purporting to be a copy of such will, to be recorded. This record shows only one attesting witness to the copy, and this, it is claimed, invalidates the finding of the commission, and renders the record of such finding inadmissible in' evidence. We can not accede to this view. It must be presumed that the court, in admitting this will to probate, and the board of commissioners, proceeded according to law, and acted upon ¡iroper and sufficient evidence; and because that evidence is not preserved, this presumption is not overcome. Even had the county court erred in admitting the will to probate on insufficient evidence, its judgment would not be a nullity, but would stand until set aside or vacated in some mode known to the law. But aside from this, it is not perceived how this objection, if allowed, can benefit the appellant. If there were no will, or the record be rejected, then the whole farm, instead of only sixty acres of it, descended to the six heirs of J ames Gill, and appellant would have to claim the whole under four out of six heirs. Again, the deed of Napoleon B. Gill, under which appellant claims title, expressly excepts and reserves twenty- acres out of the tract to satisfy the heirs of the other two deceased daughters, and if no will was ever legally made, these heirs, instead of being entitled to one-third of sixty acres of the land, would have owned one-third of the entire tract. We hold that this objection is unavailing to the appellant.
It is claimed that as Napoleon B. Gill made a warranty deed for the land to Herod M. Jenkins, the title subsequently acquired by him passed-to and became vested in the grantee of Jenkins,: — the appellant. If Napoleon B. Gill had attempted, in his deed, to convey the entire estate in the land, this would have been the case; but it has been seen that he expressly excepted from his conveyance an undivided twenty acres in the tract. A title is created by estoppel when a person not having an estate at the time of his grant with warranty, after-wards acquires the same. In such case the after acquired title or estate inures, by way of estoppel, in favor of his covenantee. It rests upon the principle that a party will not be allowed to attack a title the validity of which he has covenanted to maintain. The covenant of title, here, related only to the land or estate conveyed, and not to the portion excepted, and the grantor is under no obligation to maintain the title to the excepted twenty acres.
As to the deeds from the several heirs of Narcena Emeline Smith and Nancy Louisiana Gill, deceased, for their interests in the twenty acres reserved, made since the deed of Napoleon B. Gill to Jenkins, under which Napoleon B. Gill now claims title, the appellant may object fof any proper cause. Upon their validity and admissibility as evidence depends the title of the petitioner Napoleon B. Gill.
The deed from John McClintoek and wife to Napoleon B. Gill, dated October 25, 1871, was acknowledged before a justice of the peace of Cape Girardeau county, in the State of Missouri. The objection made to the introduction in evidence of this deed is, that the certificate of the clerk of the official character of the justice of the peace is defective, in failing to show that he was the “clerk of a court of record,” — and the case of Shepard v. Carriel, 19 Ill. 319, is referred to as sustaining the objection. That case was decided under section 16, chapter 24, of the Bevised Statutes of 1845, which relates to certificates of conformity, and not to the official character of the justice taking the acknowledgment. Here, no attempt was made to show that the deed was executed and acknowledged in conformity w'ith the laws of Missouri, where the grantors resided, but the deed was executed and acknowledged in conformity with the laws of this State, if the officer taking the acknowledgment was a justice of the peace. The second clause of section 20, chapter 30, of the present revision, provides that if the deed is acknowledged before a justice of the peace, “there shall be added a certificate of the proper clerk, under the seal of his office, setting forth that the person before whom such proof or acknowledgment was made, was a justice of the peace at the time of making the same. ” It will be seen that the statute applicable to this case does not require the clerk to show in his certificate that he is a clerk of a court of record. The “proper clerk” is the one in whose office the evidences of the official character of justices of the peace are kept and preserved by law.
Several other deeds were objected to on account of alleged defects in the certificates of acknowledgment, not necessary to be discussed, for the reason that their execution was proved by the testimony of the petitioner Napoleon B. Gill. This obviated any objection that might have existed as to the certificates of acknowledgment. In the deed marked “Exhibit K, ” dated in October, 1871, Henry McClintock, though named as a grantor, did not execute the same, but he executed and acknowledged another deed, with Washington and Margaret Bobinson, to John H. McClintock. In the deed described as “Exhibit K," one of the grantors¡ .was described as Bobert P. McClintock, and he executed the same by the name B. Parker McClintock. The certificate of acknowledgment shows that Bobert P. McClintock acknowledged the same, and this will be sufficient to show that he and B. Parker McClintock were the same person.
It is also urged that the Statute of Limitations is a bar to the title of the petitioners. It may be observed that Herod M. Jenkins, when he received his deed from Napoleon B. Gill, agreed to pay the taxes for and on behalf of the heirs of Narcena Emeline McClintock and Nancy Louisiana Gill, and there is no proof that the possession of this land was at any time adverse and hostile to the claim of the true owner. On the contrary, the proof shows that appellant’s (and its grantees’) possession was taken subject to the known and recognized exception of twenty acres in other parties, and not in hostility to it. As said in Rigg v. Cook, 4 Gilm. 351: “Where the possession has been consistent with or in submission to the title of the real owner, nothing but a clear, unequivocal and notorious disclaimer and disavowal of the title of such owner will render the possession, however long continued, adverse.” The Statute of Limitations does not commence to run against one tenant in common in favor of another, until after an ouster or disseizin. Jenkins et al. v. Dalton et al. 27 Ind. 78" date_filed="1866-11-15" court="Ind." case_name="Jenkins v. Dalton">27 Ind. 78.
It is also claimed that the court erred in not finding and declaring the rights of Mary Olyphant, the interpleading minor. The judgment may be regarded as finding no title in her, and in this we see no error, for the reason that there is no sufficient evidence of title in her, even if appellant might assign this for error. The only proof of title in the inter-pleading minor was the'testimony of John Stephens, Jr., that he knew her father, who claimed the two lots in his lifetime, and had possession thereof. There is no proof showing how Olyphant acquired the possession, or of whom. For aught that appears, Olyphant may have acquired possession of his two lots of the appellant.
Without noticing all the objections made, we think the evidence sustained the findings of the court, and that there is no material error, prejudicial to the appellant, apparent on the record, and consequently the decree below should be affirmed.
Decree affirmed.