133 Ill. 619 | Ill. | 1890
delivered the opinion of the Court:
This was ejectment, brought in the circuit court of Fulton county, to recover possession of the east half of the north-east quarter of section 11, township 6 north, range 5, east of the fourth principal meridian. The plaintiffs below, who are appellants here, were George W. Biggs, Mary T. Biggs.and Lawrason Biggs, trustees under the last will and testament of Lawrason Biggs, deceased, and the defendants below, who are appellees here, were Stephen A. D. Girard and Mary Bomine. An issue formed upon the plea of not guilty was submitted to the court without a jury, and the finding and judgment were for the defendants.
At the trial the plaintiffs introduced in evidence a patent for the land from the United States to Lawrason Biggs, dated the 10th day of November, 1840; also, proof of the death of said Biggs on the 13th day of October, 1884; and also the will of said Biggs, duly probated, whereby he devised all of his real estate to the plaintiffs. The defendants produced in evidence a deed for the premises from the sheriff of Fulton county to James Q. Palmer, dated September 18, 1857, and filed for record January 22, 1858, and purporting to be based upon a judgment for the taxes of 1854, rendered at the May term, 1855, of the- county court of Fulton county, and also a quitclaim deed for the premises from said Palmer and wife to Corbley M. Girard, dated March 10, 1862, and filed for record January 9, 1863.
It was proven by the defendants that Corbley M. Girard moved upon the land, with his family, in the spring of 1863, and resided there until bis death, in December of that year; that at that time most of the land was under fence, and there was a dwelling house situate thereon; that thereafter, Jane Girard, the widow of said Corbley M., continued to reside there, with the children of herself and her deceased husband, until her death, in January, 1884, and that her widow’s dower was never assigned. It also appeared that Corbley M. Girard left him surviving seven children, two of whom died in infancy, and childless; that two of the remaining children, Edith Seigler and Amanda J. Feidler, together with their husbands, conveyed, in 1884, their interests in the land to Stephen A. D. Girard, one of the appellees, and the other, Bettie Waterhouse, transferred her interest to the appellee Mary Bomine, and that since the death of Jane Girard, the widow, appellees have been in possession of the land. The said Jane Girard paid, out of moneys made off of the land, all the taxes assessed thereon from 1874 to 1883, both inclusive, and since her death appellees have paid all the taxes.
The question arises whether or not appellees established a bar to the suit of appellants by bringing themselves within the provisions of the first section of the Limitation law of 1839. (Starr & Curtis’ Ann. Stat. chap. 83, sec. 6.) The substance of that section is, that any person in the actual possession of lands or tenements, under claim and color of title made in good faith, and who shall, for seven successive years, continue in such possession, and shall also, during that time, pay all taxes legally assessed on such lands or tenements, shall be held and adjudged to be the legal owner of said lands or tenements to the extent and according to the purport of his or her paper title; and that all persons holding under such possession, by purchase, devise or descent, before the seven years have expired, and who continue such possession, and continue to pay the taxes, so as to complete the possession and payment of taxes for the term of seven years, are entitled to the benefit of the section.
It must be- admitted that the deeds from the sheriff of Fulton county to Palmer, and from Palmer to Corbley M. Girard, constituted claim and color of title, made in good faith, within the purview of the statute. Whatever rights or interests either Jane Girard, the widow, or the children and heirs of Corbley M. Girard, deceased, took in respect to this land, they were alike connected with and dependent upon the title or color of title which the deceased purchased from Palmer. Immediately upon the death of Corbley M. Girard, in 1863, his title descended to his children as tenants in common, and the interest taken by them was a present vested interest, of which they were seized in fee. Dower was never assigned to Jane Girard, and she therefore never became seized of an estate of dower in the land. All that she had was a right, which rested only in action, to have her dower assigned, and the temporary defeasible right, under the statute then in force, to her widow’s quarantine. This latter right was given by section 27 of the Dower act, (1 Gross’ Stat. chap. 34,) which reads as follows: "“The widow may, in all cases, retain the full possession of the dwelling house dn which her husband most usually dwelt next before his death, together with the out-houses and plantation thereto belonging, free from molestation and rent, until her dower be assigned. ” Her dower never having been assigned, Jane Girard never became the tenant in dower of the heirs. She was, however, by the statute, invested with a right of possession, which placed her in a position analogous to that of a tenant of the heirs, free from molestation and rent. Her right of possession was defeasible upon the assignment of dower, but since, in her case, dower never was assigned, it continued for the term of her natural life. Her possession, under this statutory right, of the dwelling house and land was not adverse to the title of the heirs, but was entirely consistent and in harmony with such title. Musham, v. Musham, 87 Ill. 80; Mettler v. Miller, 129 id. 630.
In Williams v. Ballance, 23 Ill. 193, and Martin v. Judd, 81 id. 488, this court construed the words.“actual residence,” as used in the Limitation law of 1835, and it was held that the actual residence required by that act need not be by the owner of the title in person, but that such residence might be by a tenant, or by one in possession under a contract to purchase. In Kane v. Booth, 70 Ill. 587, the court held that it was not necessary, in order to create the bar of. section 1 of the Limitation law of 1839, that the person claiming the land' should actually reside on it or cultivate it,—that the requisite possession might be shown in different modes, and that possession by a tenant was enough.
It is clear, both from reason and from these authorities, that" the possession of a tenant must be held to inure'to the benefit of the holder of the title. Jane Girard was lawfully in actual possession, under the title which descended to the heirs, and such possession was analogous to and substantially that of their tenant, and was, in contemplation of law, the possession of the heirs. The fact that so long as her dower was unassigned she had a right to the exclusive occupancy and control of the land, and to lease it and receive the rents, and to maintain ejectment against the heirs in the event they had obtained possession without her consent, is wholly immaterial. Her case does not stand otherwise in these respects than it would had she been the tenant of the heirs under an ordinary lease for years. In this latter ease she would have had the right to exclusive possession, and, unless prevented by the terms of the contract, the privilege of leasing and collecting rents, and the right to recover in ejectment against the heirs, in the event they wrongfully got possession.
It is claimed, that as the widow paid the taxes in her own name, and was compelled to pay them in order to protect her own possession, such payments can not be regarded as having been made for the heirs, and can not inure to their benefit. We are not inclined to adopt' this view. She was lawfully in possession under her widow’s quarantine, and her occupancy was connected with, based upon, and in subordination to, the. title which had been vested in her husband, and that title had descended to his heirs-at-law, but charged with the burden of her dower and quarantine rights. Being in possession under her quarantine, she was entitled to receive, and did receive, all the rents and profits, and it was therefore required of her that she should pay all the taxes. (Strawn v. Strawn’s Heirs, 50 Ill. 256.) A failure to pay the taxes would have resulted not only in a loss of her possession, but in a divestiture of the title of the owners of the fee. The legal duty was imposed upon her to protect the title of the heirs by keeping down the taxes,, and if she had neglected and refused to perform that duty, the law would have afforded relief to. such heirs. And manifestly,. in case of a failure on her part to make payment of the taxes, she would not have been permitted to purchase the land at the tax sale, and acquire a tax title thereto which she could enforce against the heirs. She paid the taxes under the title which had be'en held by her husband, and which the law, at his death, had cast upon his children, and such payments must be held to have inured to the benefit of the holders of that title, and to have been their payments.
If we are correct in the conclusions we have thus far stated, it is clear, without any further discussion of the testimony, that appellees established at the trial a complete bar, under what is now the sixth section of the Limitation law, to the paramount title exhibited by appellants.
The view we have taken of the case obviates the necessity of any discussion of the questions raised in respect to the twenty years’ Limitation law and the Limitation law of 1835.
The circuit court properly found the issues for appellees, and the judgment 'is affirmed.
Judgment affirmed*
