Busch v. Huston

• Court: Illinois Supreme Court
• Writing for the Court: SCHOLFIELD
• Citation: Busch v. Huston, 75 Ill. 343, 1874 WL 9250 (Ill. 1874)
• Decision Date: 30 September 1874
• Parties: JOSEPH BUSCHv.GEORGE W. HUSTON.

75 Ill. 343

1874 WL 9250 (Ill.)

JOSEPH BUSCH

v.GEORGE W. HUSTON.

Supreme Court of Illinois.

September Term, 1874.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Mercer county; the Hon. GEORGE W. PLEASANTS, Judge, presiding.

Messrs. PEPPER & WILSON, for the appellant.

Mr. ISAAC N. BASSETT, for the appellee.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

Appellee exhibited his bill in chancery against appellant for partition, in the Circuit Court of Mercer county, claiming one-fourth of certain lands described in the bill, as one of the heirs at law of John Dewitt, Sr., deceased. The decree of that court was in conformity with the prayer of the bill, and it is sought by this appeal to procure its reversal upon the ground that appellee is barred by limitation from asserting his claim to the property. It is conceded that John Dewitt, Sr., died intestate on the 6th day of April, 1846, seized in fee simple of the lands in controversy, leaving surviving him, as his only heirs at law, Benjamin, John, Jr., and Betsey, intermarried with John Shoemaker, his children, and appellee, who is the only child and heir at law of his daughter Jane, who died intestate some time previously, his grandchild.

Appellant claims by purchase and conveyance from the heirs at law of the said John and Betsey Shoemaker. It is not claimed that their title was derived from any one claiming adversely to the title of John Dewitt, Sr., or that appellee has conveyed his interest in the lands, or been deprived of it by judicial process. John Shoemaker was in possession of the lands at and for some time prior to the death of John Dewitt, Sr., under an arrangement which created the relation of landlord and tenant between them. The possession thus commenced was continued to be held by him and his heirs, successively, until the latter conveyed to appellant. Upon the death of John Dewitt, Sr., Betsey Shoemaker, the wife of John, be came seized of the undivided fourth of the lands, and the evidence clearly shows that no claim was made by them to any other interest in the land than what she thus inherited, until he purchased and received a conveyance from John Dewitt, Jr. The deed from John Dewitt, Jr., to John Shoemaker, is dated April 30, 1851, and purports to remise, release, and forever quitclaim all “the right, title, interest and estate of” John Dewitt, Jr., and wife, in and to the property in controversy, to John Shoemaker. There is no question but that John Shoemaker paid all taxes assessed on the land, after this deed was executed, and that he received the rents and profits thereof, until his death, and that this was continued by his heirs until they conveyed to appellant.

It is insisted that this deed was good color and claim of title, and that, being made in good faith, and followed by the payment of taxes, the bar is complete under the first section of the limitation act of March 2, 1839.

If the deed had purported to convey the lands in controversy, and not merely the interest of the grantor in them, and been accepted and acted on in good faith as conveying them, the position would, unquestionably, be correct.

But John Dewitt, Jr., only professed to convey his interest in the property, whatever that was, and this was all that passed by the deed. May v. Le Claire, 11 Wall. 232; Edwards v. Bishop, 4 Comst. 64. That interest was his undivided fourth, as one of the heirs at law of John Dewitt, Sr. John Shoemaker did not claim that this deed conveyed full title to the property, for he previously justified his possession by the undivided interest which his wife had in it, and he subsequently recognized Benjamin Dewitt's interest by contracting to purchase it. There is no proof that either John Shoemaker in his lifetime, or his heirs since his death, and prior to their conveyance to appellant, claimed or pretended that the deed from John Dewitt, Jr., was intended to, or that it did, in fact, convey all the interests in the land in controversy. It is impossible to say that a deed is color or claim of title to that of which it is not pretended that it assumes to be a conveyance, or that...