Burgett v. Taliaferro

• Court: Illinois Supreme Court
• Writing for the Court: SCHOLFIELD
• Citation: Burgett v. Taliaferro, 9 N. E. 334, 118 Ill. 503 (Ill. 1886)
• Decision Date: 13 November 1886
• Parties: BURGETT v. TALIAFERRO.

118 Ill. 503

9 N.E. 334

BURGETT

v.TALIAFERRO.

Supreme Court of Illinois.

November 13, 1886.

Appeal from Mercer.

Frederick T. Burgett filed his petition in the circuit court of Mercer county on the thirteenth day of October, A. D. 1885, praying partition of lot 10, in block 10, in Keithsburg. He made Benjamin C. Taliaferro, Maria Haralson, Amanda Armindale, Alvin Patterson, the unknown heirs at law of David Patterson, deceased, and David Wolfe, defendants, and claimed that the lot was owned thus: Frederick T. Burgett, 22-110 parts; Benjamin C. Taliaferro, 55-110 parts; Maria Haralson and the unknown heirs at law of David Patterson, deceased, each 11-110 parts; Amanda Armindale and Alvin Patterson, each 11-220 parts. The petition was subsequently amended, alleging a conveyance by Benjamin C. Taliaferro of his interest to Robert B. Taliaferro.

Benjamin C. Taliaferro answered, alleging that he bought the entire lot in good faith from Jane Patterson, and took a warranty deed from her therefor, on the twenty-fifth day of August, A. D. 1874, which he caused to be recorded in the proper office on the twelfth day of October, A. D. 1874; that he immediately entered into the actual possession of the lot, and retained the same until after the petition was filed, and during all that time paid all the taxes assessed against the lot; and he therefore set up and relied upon the first section of the ‘Act to quiet possessions and confirm titles to land,’ approved March 2, 1839. Purple's Real Estate St. 426. The answer of Robert B. Taliaferro claimed that he purchased in good faith, and was the owner of the lot. Amanda Armindale and Alvin Patterson answered jointly and severally, alleging that the lot was sold on the tenth of June, A. D. 1850, for the taxes of 1849, to Benjamin D. Ellett, and that a deed was made to him by the sheriff of Mercer county on the second day of February, A. D. 1853; that on the sixteenth day of March, A. D. 1854, Ellett sold the lot to James Patterson for $100, and conveyed the same to him; that Patterson bought in good faith, believing that he was acquiring title to the same, and went into possession immediately afterwards, under said deed, claiming title in fee-simple in his own right to the lot, and that he continued to occupy the same from that time until his death in 1861, and paid all taxes thereon from A. D. 1853 to A. D. 1860, inclusive; that he devised the lot to his mother, jane Patterson, during her life-time, and the remainder after her death to the defendants Amanda and Alvin. The defendant Alvin Patterson also filed a cross-bill, alleging the same facts as alleged in the joint and several answer of himself and Amanda Armindale, and praying certain specific relief. Answer was filed by Benjamin C. and Robert B. Taliaferro, putting in issue the allegations of the crossbill, and replications were filed to the answers to the original and cross bill.

At the April term, A. D. 1886, of the Mercer circuit court, the cause was heard on bill, answer, cross-bill, and answer, and evidence then submitted; and the court thereupon decreed that both the original and cross bills be dismissed.

The facts in evidence about which there is no dispute are: Matthew Patterson became the lawful owner of the lot in controversy in A. D. 1848. In 1849 he built a brick house upon it, but in the fall of that year, and before the house was finished, Matthew rented the house and lot to B. D. Ellett for two years, or until Matthew should return from California, to which place he was intending to soon depart. Ellett, in consideration of the use of the property, paid Matthew in advance $100, and agreed to finish the building, take care of the property, pay the taxes, and settle the balance on Matthew's return. Ellett then went into the possession of the property. On the twenty-fifth day of February, A. D. 1850, Matthew conveyed the lot to Stephen S. Phelps by a deed absolute on its face, but in reality to secure the payment of a sum of borrowed money. Soon after this, in the spring of 1850, Matthew and his father and his brother John went to California. Not long afterwards his father died. Then, either in 1850 or in 1851, Matthew died intestate; never having returned from California. Matthew had never been married, and hence left neither widow nor lineal descendants surviving him. He left, as his heirs at law, his mother, Jane Patterson, his brothers, David, John, James, William, Robert, and Charles, and his sisters, Maria, now Haralson, Eliza, now Walker, and Jane, now Lloyd.

David had gone to Canada before Matthew went to California, and has never been heard of since, and so has long since, in legal estimation, been presumed to be dead. John died soon after Matthew died, leaving neither widow nor lineal descendants, but his mother and his remaining brothers and sisters, above named, his heirs at law.

On the tenth of June, A. D. 1850, the lot was sold to B. D. Ellett for the taxes of 1849. No redemption being effected, the sheriff conveyed the lot to Ellett on the twenty-second day of February, A. D. 1853, and this deed was recorded February 28, 1853. On the twenty-eighth day of May, 1852, Stephen S. Phelps conveyed the lot by warranty deed to the heirs at law of Matthew Patterson, deceased, and the deed was duly recorded August 4, 1852. B. D. Ellett conveyed by quitclaim deed to James Patterson on the sixteenth day of March, A. D. 1854, which deed was recorded on the twenty-fourth day of May, 1861.

James died testate in June, 1861, leaving a widow, Amanda, since intermarried with a man named Armindale, and a son named Alvin, surviving him. By his last will and testament he devised and bequeathed the rents and profits of the house on this lot to his mother, Jane Patterson, during her life, and he devised the lot, subject to this charge, to his wife, Amanda, and his son, Alvin, which will was duly probated in the proper office on the eighteenth of June, 1861.

William Patterson conveyed and quitclaimed the lot to his mother, Jane Patterson, by deed dated August, 1872, which was duly recorded July 17, 1874. Charles Patterson conveyed and quitclaimed the lot to his mother, Jane Patterson, September 12, 1872, which was also recorded July 17, 1874. Jane Lloyd conveyed and quitclaimed the lot to her mother, Jane Patterson, on the first day of August, A. D. 1872, and this was recorded on the seventeenth of July, 1874. On the date therein stated the following agreement was made:

‘STATE OF ILLINOIS, MERCER COUNTY, KEITHSBURG, June 16, 1874.

‘This is to certify that I have this day sold to B. C. Taliaferro all my interest that I now hold in lot ten, (10,) in block ten, (10,) in the town of Keithsburg, in said county, said interest consisting of what I claim as the heir of Matthew R. Patterson, and the interest of four of my children as heirs of Matthew R. Patterson; and I do further agree and bind myself to get a deed from my daughter Eliza Walker, by the first day of August next, for her interest in said lot, and I do hereby put the said B. C. Taliaferro in possession of said lot, and to make him, if necessary, any other deed for the conveyance of my interest in said property, or what other interest I may hereafter acquire, and for which property, so sold as aforesaid, the said B. C. Taliaferro binds himself to pay to the said Jane Patterson in money, on the first day of August, A. D. 1874, if necessary, and if not, on the first day of September next, the sum of one hundred dollars, for which he has given his promissory note, payable on the first day of August, A. D. 1874.

‘Given under my hand and seal this sixteenth day of June, A. D. 1874.

‘JANE PATTERSON.’ [Seal.]

Acknowledged before T. S. Cummins, J. P., the same day; recorded July 17, 1874.

On the twenty-fifth day of August, A. D. 1874, Jane Patterson assumed to convey the lot to Benjamin C. Taliaferro by warranty deed, and it was duly recorded on the twelfth day of October, 1874; and on the twelfth day of October, A. D. 1885, Benjamin C. Taliaferro conveyed the lot to Robert B. Taliaferro by quitclaim deed. On the seventeenth of November, A. D. 1883, Robert Patterson assumed to convey the lot by quitclaim deed to Frederick P. Burgett, and on the third day of December, A. D. 1883, Eliza Walker also assumed to convey the lot by quitclaim deed to Frederick P. Burgett.

It was agreed that James Patterson paid all taxes assessed on the property from 1853 to 1861, inclusive; that Jane Patterson paid all taxes assessed thereon from 1861 to 1872, inclusive; and that Benjamin C. Taliaferro paid all taxes levied and assessed on the property for the years A. D. 1874 to A. D. 1884, inclusive.

We admit that, under our limitation law, a co-tenant who enters claiming the whole of the premises under some other title may oust his co-tenant, and defeat his title. But when the co-tenant enters, claiming under the common title, or without any other claim of title, then he cannot claim adversely. Busch v. Huston, 75 Ill. 347;Ball v. Palmer, 81 Ill. 370;Todd v. Todd, 7 N. E. Rep. 583; McClellan v. Kellogg, 17 Ill. 504. Jane Patterson's occupation, therefore, was not adverse to the other heirs of Matthew Patterson; and the same is true of B. C. Taliaferro, since, according to the terms of his contract with Jane Patterson, she was to convey to him only such title as she had. He entered, therefore, as co-tenant with such of the heirs as had not conveyed their interests to Jane Patterson. The warranty deed afterwards given by Jane Patterson to Taliaferro did not make Taliaferro's holding adverse to such heirs from the date thereof; for, having entered into possession as co-tenant, any purchase of title made afterwards inures to the benefit of all the co-tenants. Freem. Co-tenancy, §§ 158, 166; Bracken v. Cooper, 80 Ill. 225;Titsworth v. Stout, 49 Ill. 78.

The doctrine of adverse possession is to be taken strictly, and must be with such circumstances as are capable, in their...