178 N.E. 88 | Ill. | 1931
On February 9, 1928, Joseph Jacobi filed his bill in the circuit court of Cook county, against his wife, Anna Jacobi, and the Forest Preserve District of Cook county, for the partition of twelve and one-half acres of land lying north of Irving Park and east of the DesPlaines river, in what is known as Schiller Park. The cause was referred to a master to take the evidence and report his conclusions. Pending the hearing Jacobi and hi s wife died and their devisees were substituted as parties. The master found that Jacobi and wife had no title to the land and that the bill should be dismissed for want of equity. Exceptions to the report were overruled, a decree was entered as recommended, and an appeal has been prosecuted to this court by Peter Kaskie, a devisee.
The only question for determination is whether Jacobi and wife and their devisees had title to the land based upon adverse possession for twenty years. Mrs. Jacobi by her will left all of her property to her two sons, Peter Kaskie and Thomas Jones, subject to a life estate in her husband. Joseph Jacobi willed all of his property to Kaskie and Jones in equal parts. At the time the bill was filed Jacobi was *520
seventy-eight years old and his wife was eighty-one. Adjoining the twelve and one-half acres was a five-acre tract, upon which there were a house, a barn and other buildings. With the exception of about two years Mrs. Jacobi and her family had lived on this five acres since about the year 1884. The twelve and one-half acres were vacant and unoccupied but they had been used to raise vegetables and for pasture. There was a fence around all or a part of this land for many years, but the fence had been in various states of repair. In the fall of 1890 Mrs. Jacobi moved to Chicago, where she was later married to Jacobi. For two years they lived in Chicago, where Jacobi was employed in the barns of the American Express Company. In 1892 the house on the five acres burned and later it was replaced by Jacobi. About two years after his marriage Jacobi moved into the house on the five acres and used the twelve and one-half acres for the raising of vegetables and for pasturage. James H. and George Lomax owned land adjacent to the premises in question. On October 4, 1904, they filed in the circuit court of Cook county a bill for partition of the premises in question and other property belonging to them. Jacobi and wife were made parties defendant and were represented by Johan Waage, who filed an answer for them. A written stipulation was filed, in which it was agreed that a decree should be entered providing that Jacobi and wife were the owners of the five-acre tract and that they had no right, title or interest in the twelve-and-one-half-acre tract, which was owned by Marie Lomax, Robert D. Lomax and James Wright. Pursuant to this stipulation, on June 27, 1905, a decree was entered by consent which found the rights of the parties as provided in the stipulation. Waage testified that on July 10, 1905, he gave a certified copy of this decree to Jacobi. An appeal was prosecuted from that decree to this court, (Lomax v. Lomax,
To establish title by twenty years' adverse possession the claimant must prove that he and his predecessors in title have been in the actual, visible, notorious, exclusive and continuous possession for that period under claim of ownership and that the possession was hostile or adverse in its origin. (Maremont v. Ovenu,
It is one of the essential elements of title by adverse possession that such possession be under claim of ownership *523
from its inception. Here the possession of the Jacobis was exactly the same after the decree as before. There was no new taking and there was no notice to the owner of any claim of ownership inconsistent with their admission in the consent decree. While the record shows they paid taxes after the decree and until the property was taken off the tax books on purchase of the tract by the forest preserve district it does not appear whether they paid taxes before the decree. Certainly, after entry of that decree their adverse possession, if such was to exist, must begin de novo. This means that they must prove possession showing some evidence of a claim of ownership different from that which by the consent decree they admitted was not a possession under claim of ownership. Unless such is shown the Statute of Limitations does not begin to run, and it is impossible, therefore, that it ripen into title. No presumptions are indulged for the benefit of such title, but in order that it ripen it must be hostile and adverse in its inception. In order to be hostile and adverse it must be under claim of ownership, hence possession which is not under claim of ownership in its inception cannot ripen into an adverse title. (Joseph v. Evans,
The chancellor did not err in dismissing the bill for want of equity, and the decree will be affirmed.
Decree affirmed. *524