77 Ill. 253 | Ill. | 1875
delivered the opinion of the Court:
The only question presented for our consideration is, whether the answer to the amended bill was sufficient to defeat the recovery by appellees. It seems to be undisputed that appellant owns an undivided four-fifths of the lands in dispute. Appellees claim the other one-fifth, as heiz-s of their mother, Elizabeth Stroud; but appellant sets up facts, in his answez’, which he insists pz’esented a defense, but the coui't below, having opened a default, gives leave to file an answer to the merits. Oil its being filed, it was adjudged'insufficient, and, on motion, stricken from the files; and this action of the court is questioned by the assignment-of errors.
He sets up, in his answer, that he, two brothers and two sisters, were the only heirs of George Nichols, deceased, from whom they inherited this and other property; that, after his death, the heirs met and entered- into a parol partition of these lands; that a portion of them were allotted to Elizabeth and a portion to his brother Thomas Nichols; that Elizabeth, before her marriage, bargained and sold to appellant, under Iter hand and seal, all of her right and title in the east half of the south-west quarter of section 28, and Thomas and his wife conveyed 'to him, in December, 1844, the north half of the south-west quarter of section 28; and that he furnished money to purchase a homestead for Elizabeth and her husband, and they agreed to convey to him the south-west quarter of the south-west quarter of section 28, and the north-east quarter of the north-east quarter of section 36, in satisfaction of the same, and that James conveyed to him the north-west quarter of the north-east quarter of section 36, intending to vest the entire title thereto in appellant.
If the answer is true, that Elizabeth, the mother of appellee, bargained and sold to appellant the east half of the south-west quarter of section 28, we are at a loss to know why that does not form a complete bar to all claim of Nancy and Martha. If it does not, it would be difficult to perceive what would constitute a defense. This is a proceeding in equity, and must be governed by equitable rules and considerations. Then, the bargain and sale by Elizabeth to appellant, in writing, under seal, in equity, passed the equitable title, although it may not have been a formal deed. This rule is so familiar that the citation of authorities is wholly unnecessary. The language is not that she bargained to sell, but that she “bargained and sold, under seal.” The implication, and the only implication, is, that the sale was complete, and that it was in writing and under seal, and, on a hearing, appellant would be held to such proof. This, then, presented a defense to the merits as to that tract; it was not only meritorious, but it was eminently just and equitable. It would be a reproach to a court of equity to hold, that Elizabeth having bargained and sold the eighty-acre tract to appellant, and received pay for it, and having acquiesced in the sale during her lifetime, her children may come in, after almost a quarter of a century, and, on a bill in equity, recover the land.
"When a party appeals to equity, he must do equity. The chancellor will never enforce mere technicalities, at the sacrifice of justice, unless compelled to do so by the stern and inflexible rules of law.
Again, the answer alleges that all of the heirs came together, and, by parol, made a partition of the lands which they inherited from their father, and each of the heirs took possession of the share severally allotted to him. It has been repeatedly held that a parol partition, if followed by-possession by each tenant in common, is sufficient to protect each in his several share, and, although it does not pass the legal title, it protects the possession, and a conveyance will .be decreed in equity; and where the possession, under such a partition, has been of such a length of time as to warrant the presumption that a conveyance was made, the tenant will be held to be vested with the legal title. See Manly v. Pettee, 38 Ill. 128, and Tomlin v. Hilyard, 43 Ill. 300. Such a partition, followed with possession, has been held good even against creditors and subsequent purchasers; but if that were not so, it would surely be good against heirs, who take as volunteers. It would be most inequitable to permit the mother of Martha and Nancy to receive and hold her just and equal share of her father’s real estate, and then claim her share in the lands in controversy; and more so, after she had acquiesced in the partition during her life, to permit her heirs, long after they had arrived of age, to claim the share of their mother in these lands.
It also appears, from the allegations of the answer, that appellant had claim and color of title, made in good faith, to these lands, and had been in possession and paid taxes thereon, all concurring for more than seven years after the heirs of Elizabeth arrived of age; and if so, that would constitute a bar, as one disability can not be lapped on another.
It may be that the allegation as to paying taxes is not as specific and direct as good pleading requires. He does not allege he paid all taxes legally assessed thereon; nor does he allege that he was in the actual possession of the land ; nor does he, in terms, allege that he held in good faith under his claim and color of title. These averments may not all be essential, but are usually so made.
Again, he does not refer to the statute, nor does he claim the benefit of a bar of the statute. This should be done in some apt language; hut for the errors indicated, the decree of the court below must be reversed and the cause remanded, with leave to appellant to amend his answer, if he shall he so advised.
Decree reversed.
