51 Ill. App. 317 | Ill. App. Ct. | 1894
delivered the opinion of the Court.
It is urged that under the evidence as to the existence of an heir of C. E. Robinson, not one of the plaintiffs, this judgment for the possession of the entire premises can not be sustained. The testimony that the three plaintiffs are the three children of C. E. Robinson, is clear. The evidence that there is or ever was another child, is vague and most unsatisfactory.
The witness, Martha Robinson, testified that she had for ten years prior to her father’s death lived here; that she had never heard her father speak of this supposed child, and her mother had spoken of him only as a child by a former wife, who had gone South many years ago and was supposed to have died. It does not appear that the mother had ever seen her supposed step-son, or upon "what information she spoke of such a person.
Thus the evidence derived from the family of the existence at any time of another child, is not only a mere statement of one whom it is not shown ever knew, or was informed by any one who did know, about such matter, but the evidence of existence is coupled with the same class of evidence of his death. A presumption of death arises from a continuous absence abroad of seven years, during which time nothing is heard of the absent person by those who would naturally have heard from him, if alive. From non-claimer of rights or exposure to peculiar sickness, death at an earlier period may be inferred. Wharton on Evidence, Secs. 1274 and 1277; In re Hutton, 1 Cust. 575; Taylor on Ev., Sec. 158; Rex v. Harbone, 2 A. & E. 544; Doe v. Griffin, 1 East, 293.
The testimony as to two men having, just before the trial, called and stated that they had seen in jail, in Salt Lake, a step-brother of the plaintiffs, we do not regard as establishing anything material.
In considering evidence of this kind courts adopt the conclusion which appears to rest on the most solid foundation. Johnson v. Todd, 5 Beavan, 509, 600.
That these men knew anything about what they spoke of is not shown; no satisfactory reason for their appearance or disappearance appears. At the most this is but a rumor from an unknown source.
O. E. Eobinson had been, at the trial of this cause, dead for nearly a year. He left, it appears at least,.one piece of real property, bearing a rental of $3,000 per annum. He left no will. If he has a living son in jail in Salt Lake or elsewhere, of whom his daughter, living with him for more than ten years, never heard him speak, it is in every respect probable that ere this, such son, or some one representing him, would have appeared to claim a share of her estate.
Appellant, by the payment of rent under threat of expulsion, after the death of C. E. Eobinson and after the expiration of her lease, attorned to the plaintiffs. See Voight v. Resor, 80 Ill. 331.
She, leasing this property as AL L. Wilson, filed in this case her plea in the name of and verified as “ May Eobinson.” In this plea, under oath, she sets forth that she had filed and pending in the Superior Court her petition for dower and the setting off of a homestead in the premises in controversy; and that the defendants (the heirs of C. E. Robinson) are defendants thereto.
The inference from this is that she is claiming to be the widow of C. E. Eobinson; if so, she can hardly have failed to know that he was dead when she paid the rent from May to November, 1893, more than $1,500; and she can hardly have failed to know that the plaintiffs were his children and heirs and the persons for whom their uncle was collecting the rent. She does not appear to have made the suppositious heir a party, or to have been concerned on his account. At least if she did not know aught of this, it is singular that at the trial of this cause she did not appear and so testify.
Where there is prima facie evidence of any right existing in any person, the onus probcmdi is always upon the person calling such right in question. Wharton on Evidence, Sec. 367; Banbury Peerage Case, 1 S. & S. 155.
When a fact is peculiarly within the knowledge of a party, the burden is on him to prove such fact, whether the proposition be affirmative or negative. Great Western R. R. Co. v. Bacon, 30 Ill. 347; Germ. Fire Ins. Co. v. Klewer, 129 Ill. 599; Loomis v. Green, 7 Greenl. 386; Cortigan v. Mohawk R. Co., 2 Denio, 609; Finn v. Wharf Co., 7 Cal. 253.
The judgment of the Circuit Court is affirmed,
