Blackaby v. Blackaby

• Decision Date: 20 February 1901
• Citation: 59 N.E. 602,189 Ill. 342
• Parties: BLACKABY v. BLACKABY et al.
• Court: Illinois Supreme Court

189 Ill. 342

59 N.E. 602

BLACKABY

v.BLACKABY et al.

Supreme Court of Illinois.

Feb. 20, 1901.

Appeal from circuit court, Fulton county; John A. Gray, Judge.

Action by Julia P. Blackaby and others against John Blackaby. From a judgment for plaintiffs entered after mandate from the supreme court on former appeal, defendant appeals. Affirmed.H. W. Masters and Lucien Gray, for appellant.

P. W. Gallagher and D. Abbott, for appellees.

HAND, J.

This is a bill in chancery filed in the circuit court of Fulton county by the appellees, as the widow and devisees of Inmon Blackaby, deceased, against John Blackaby, the appellant, for the partition of certain premises, and for an accounting of the rents, issues, and profits therefrom. In 1863, Inmon Blackaby, Robert Blackaby, and John Blackaby, brothers, became the owners by purchase of the premises as tenants in common. John Blackaby went into possession of the premises, and remained in the actual, visible, exclusive, and continuous possession thereof from the time of the purchase until the bringing of this suit. In 1867 he purchased the undivided third owned by Robert Blackaby. During his occupancy he paid all taxes assessed against the land, and erected improvements thereon costing from $6,000 to $8,000, but paid no rent for the third not owned by him. The appellant pleaded the statute of limitations, and also answered, setting up 20 years' possession in himself, and denying that Inmon Blackaby at the time of his death was seized in fee of any part of the premises, or that the appellees have any interest in the lands and rents and profits arising therefrom, and setting up the improvements made by him, and payment of taxes. Replication was filed, and the cause was heard by the court and a decree rendered granting the partition as prayed, without an accounting; finding that appellant, by improvements placed upon the premises and by the payment of taxes, had paid the rents and profits which would otherwise have been due on the share of Inmon Blackaby. The appellant sued out a writ of error from this court to the circuit court to review said decree. At the April term, 1900, of this court, the decree of the circuit court was reversed and the cause remanded. Blackaby v. Blackaby, 185 Ill. 94, 56 N. E. 1053. At the May term, 1900, the mandate of this court was filed in the circuit court, and the cause redocketed, and referred to the master in chancery to take evidence upon the question of rents, profits, improvements, and taxes, and to report with his conclusions. At the September term, 1900, the master filed his report, which was approved, whereupon the appellant moved the court to again refer the cause to the master in chancery to take, hear, and report the testimony as to declarations of the appellant, made 20 years and more before the filing of the bill of complaint, as to his claim of ownership of the land sought to be partitioned, or, in lieu of such order of reference, that the court hear in open court such testimony in connection with all the other evidence heretofore taken upon that branch of the case, and that the court hold that the order of this court reversing and remanding this cause reopened the same for all purposes, and that either party to said suit be allowed to offer any and all proofs and testimony competentto have been heard originally in the case. The court overruled the motion, and decreed that the appellant was the owner of the undivided two-thirds part and the appellees the owners of the undivided one-third part of said premises, and appointed commissioners to make partition of said premises between the parties according to their respective rights, as determined by said decree. The appellant excepted thereto, and has prosecuted this appeal, and insists that the disposition of the case was contrary to the order and mandate of this court.

The mandate is as follows: ‘The court having diligently examined and inspected as well the record and proceedings aforesaid as the matters and things therein assigned for error, and being now sufficiently advised of and concerning the premises, are of opinion that in the record and proceedings aforesaid, and in the rendition of the decree aforesaid, there is manifest error. Therefore it is considered by the court that for that error, and others in the record and proceedings aforesaid, the decree of the circuit court in this behalf rendered be reversed, annulled, set aside, and wholly for nothing esteemed, and that this case be remanded to the circuit court, with directions to proceed in accordance with the views expressed in the opinion filed in this cause.’ In the opinion filed, on page 97, 185 Ill., and page 1054, 56 N. E., it is said: ‘In the case at bar, at the time John Blackaby went into possession of the premises his possession was also the possession of Inmon Blackaby, and, unless there has been some overt act on his part sufficient to constitute an ouster of the co-tenant, his contention of adverse possession cannot be sustained. The evidence may be conceded to be conflicting on that point. The chancellor heard the witnesses testify, and had opportunity to observe their demeanor, and to judge of their character for veracity, and found the issue adversely to plaintiff in error, and we are not prepared to say that finding was erroneous. To have justified a decree in his favor, the proof of the ouster of his co-tenants should have been clear and convincing. While it is true that plaintiff in error paid the taxes on the land, spent his money in making valuable improvements thereon, and had entire control and exclusive possession of the same during these years, yet he did so knowing his brother, as his cotenant, owned a one-third interest therein. He may rightfully claim against him or his heirs compensation by way of an accounting for such taxes and improvements, himself...