Almond v. Bonnell
| Decision Date | 31 January 1875 |
| Citation | 76 Ill. 536,1875 WL 8243 |
| Parties | ANTHONY ALMOND et al.v.DAVID T. BONNELL. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Montgomery county; the Hon. HORATIO M. VANDEVEER, Judge, presiding.
This was an action of ejectment, by David T. Bonnell against Anthony Almond and Alice C. Almond, to recover a certain tract of land. The opinion of the court states all the material facts in the case.
Messrs. ROBINSON, KNAPP & SHUTT, and Mr. JESSE J. PHILLIPS, for the appellants.
Messrs. JOHN M. and JOHN MAYO PALMER, for the appellee.
Appellee brought this ejectment in the court below against appellants, claiming, by his declaration, to be seized in fee simple of the lands in controversy. The appellants pleaded not guilty, and, by agreement of parties, the cause was tried by the court without the intervention of a jury. Judgment was given that appellee recover one undivided half of the land in fee simple, and the other undivided half for the life of the appellant Anthony Almond.
Appellee's proof of title consisted of a sheriff's deed to the property in controversy, supported by a judgment and execution thereon, in his favor and against the defendant Anthony Almond, and one Weston.
Appellants' title, as proved, is this: The lands in controversy were patented by the United States to Robert Stanley, May 1, 1851, who died the same year, intestate, leaving no wife or child or children, or descendants of children, surviving him. His heirs at law were his father and mother, two brothers (John and Matthew C. Stanley) and four sisters--the defendant, Alice C., wife of the defendant Anthony Almond; Loxey, wife of Mark W. Risley; Jane Tichenor, and Hannah Stanley. Of these, the father and mother, and John and Hannah Stanley, subsequently died intestate, leaving Matthew C. Stanley, the defendant Alice C. Almond, Loxey Risley, and Jane Tichenor their only heirs at law. After this, and on the 14th of February, 1856, Mark W. Risley and Loxey Risley, his wife, and Matthew C. Stanley and wife, by their several quit claim deeds of that date, conveyed to the defendants, by the description of “Anthony Almond and Alice C. Almond, his wife,” the lands in controversy, and on the 14th of April, 1857, Jane Tichenor executed a like deed of conveyance.
The first question presented by this appeal is, that the court below erred in rendering judgment for an undivided half in fee and the other half for life, when the declaration claimed the whole in fee. It is conceded by counsel for appellee, that this objection would have been good under the Ejectment act, as found in the Revised Statutes of 1845; but it is insisted that it can not now be sustained, by reason of an amendment made to the seventh section of that act by the revision thereof, in 1872. The section was originally as follows: By the revision of 1872 there is added this sentence: “But the plaintiff, in any case, may recover such part, share or interest in the premises as he shall appear on the trial to be entitled to.” Prior to this amendment, it had been always held that, under a declaration in ejectment for the entire premises, an undivided interest less than the whole could not be recovered. We are of opinion that the amendment changes that rule, and that now, under a declaration claiming certain premises, one-half or any other fractional quantity of the whole may be recovered, if the proof warrants it.
But this only partially answers the objection urged. Under a declaration claiming that the plaintiff was seized in fee of the entire premises, there was not only a recovery of the undivided one-half in fee, which we think was admissible under the amendment referred to, but there was also a recovery for the other undivided half for the life of one of the defendants. Neither the section nor amendment alluded to has any reference to the duration of the estate of the plaintiff--that is, whether it is for fee,...
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