Carpenter v. Fletcher

• Court: Illinois Supreme Court
• Writing for the Court: FARMER
• Citation: Carpenter v. Fletcher, 239 Ill. 440, 88 N.E. 162 (Ill. 1909)
• Decision Date: 23 April 1909
• Parties: CARPENTER et al. v. FLETCHER et al.

239 Ill. 440

88 N.E. 162

CARPENTER et al.

v.FLETCHER et al.

Supreme Court of Illinois.

April 23, 1909.

Error to Circuit Court, Mason County; Harry Higbee, Judge.

Bill for partition by George T. Carpenter and others against Mary E. Fletcher and others. From the decree, defendants bring error. Reversed and remanded, with directions.Lyman Lacey, Jr., for plaintiffs in error.

H. S. Elliott and R. W. Mills, for defendants in error.

This is a writ of error to review a decree of the circuit court in a partition suit in which defendants in error were complainants. The lands consist of two 80-acre tracts adjoining each other which have been in cultivation many years, the 160 acres forming a square; also a 40-acre tract of timber land lying some distance from the 160 acres. Prior to August 31, 1893, said lands were owned by Edward S. and Francis J. Fletcher, brothers of the full blood, in equal shares, as tenants in common. Edward S. Fletcher was married and with his wife and two children lived on the 160 acres. Francis J. was unmarried and resided with his parents on a farm adjoining the 160 acres. He and his brother, Edward S., were in possession, control, and management of the land. Edward S. Fletcher died intestate August 31, 1893, leaving a widow, Mary Ellen Fletcher, and two minor children, Ludicy A. and Edward S., as his only heirs at law, and they have continuously resided on the land since that time, and they and Francis J. Fletcher cultivated, or procured to be cultivated, said 160 acres, received all the rents and profits therefrom, and paid the taxes on the entire 200 acres until October, 1896, when Francis J. Fletcher died intestate, leaving no widow or children or descendants of children, but leaving the children of his deceased brother, Edward, his father and mother, John and Annabella Fletcher, and his two half-brothers, George T. and Abner N. Carpenter, who were complainants in the bill filed for partition, as his only heirs at law. The Carpenters were sons of Annabella Fletcher, the mother of Edward S. and Francis J. Fletcher, by a husband to whom she was married before her marriage with John Fletcher, the father of Edward and Francis.

July 20, 1897, John Fletcher and his wife, Annabella, the father and mother of Francis J. Fletcher, filed a bill for the partition of said 200 acres of land, to which the widow and children of Edward S. Fletcher were made defendants, together with tenants in possession of a portion of the premises. Neither of the Carpenters was made a defendant to the bill. It appears to have been unknown to the parties, including the Carpenters, that they had inherited any interest in the land from their half-brother, Francis J. Fletcher. The bill for partition filed by John and Annabella Fletcher, which was introduced in evidence on the trial of this case, alleged: That no one except the parties complainant and defendant thereto had any title to or interest in said premises; that by the death of Francis J. Fletcher the complainants and the children of Edward S. Fletcher, deceased, became seised in fee simple, as tenants in common, of the interest in said land owned by Francis J. Fletcher at the time of his death. A guardian ad litem was appointed for the children of Edward S. Fletcher, who were minors, and answered for them, and all other defendants being adults were defaulted. The cause was referred to the master, who took the testimony and reported it to the court. Upon the coming in of the master's report a decree was entered in accordance with the allegations of the bill and commissioners appointed to make partition. Afterwards the commissioners reported they had made partition of the lands between the respective parties by metes and bounds. They set off and allotted in fee to John and Annabella Fletcher the north 40 of the west 80 and 13 1/3 acres off of the west side of the north 40 of the east 80 of the 160 acres; to Edward S. Fletcher the south 40 of the west 80; to Ludicy A. the south 40 of the east 80; and to said Ludicy A. and Edward S. 26 2/3 acres off of the east side of the north 40 of the east 80, said 26 2/3 acres being subject to the dower estate of Mary E. Fletcher, widow of Edward S. Fletcher, as allotted and set off to her by the commissioners thereon. John and Annabella Fletcher were assigned 13 1/3 acres of the timber 40. Edward S. and Ludicy A. Fletcher were assigned the remainder of said 40, but 6 2/3 acres assigned them were subject to the dower estate therein assigned to their mother, Mary E. Fletcher. The report of the commissioners was approved August 10, 1897, and the parties, respectively took possession of their respective portions of the land, received the rents and profits therefrom, and paid the taxes thereon until the commencement of this suit.

In January, 1904, John Fletcher died, leaving his widow, Annabella Fletcher, and his grandchildren, Ludicy A. and Edward S. Fletcher, as his only heirs at law. In February, 1904, said Ludicy A. and Edward S. Fletcher, by next friend, filed a bill in the circuit court for partition of the land of John Fletcher and the assignment of dower to his widow. Defendants in error the Carpenters were not made parties to this suit. Such proceedings were had that the lands of John Fletcher, deceased, were partitioned between the parties to the suit and dower assigned therein to his widow. On May 22, 1905, defendants in error filed their bill in the present case, alleging that they each inherited from the deceased half-brother, Francis J. Fletcher, an undivided one-tenth interest in the 200 acres of land. Proper parties were made defendants to the bill, and partition of the land was prayed in accordance with the interests of the parties as set out in the bill. On the hearing the court found and decreed: That as to the 26 2/3 acres assigned to Mary E. Fletcher as dower, the fee in which was assigned to Ludicy A. and Edward S., her children, subject to her dower estate, the said Mary E. Fletcher and her children had continuously resided thereon since the decree for partition, claiming to own the same in fee simple; that they had paid all taxes thereon since the rendition of the decree assigning said lands to them, a period of more than seven years prior to the commencement of this suit; that under the limitation laws of this state Mary E. Fletcher had acquired a life estate in said premises; and that Edward S. and Ludicy A. had acquired a title in fee simple therein, subject to the life estate of their mother. As to the remainder of the 200 acres the court found and decreed that defendants in error were the owners of the undivided interest claimed in their bill to have been inherited from their half-brother, Francis J. Fletcher, and partition was decreed and commissioners appointed to make said partition. To review that decree a writ of error has been sued out of this court by the defendants in the bill.

FARMER, J. (after stating the facts as above).

If the decision of this case depended upon whether the partition of 1897 and the subsequent acts of the parties to that suit toward the land in controversy amounted to an ouster or disseisin of defendants in error, which is affirmed by plaintiffs in error and denied by defendants in error, the question would have to be decided in favor of the former. The rule is well settled that the mere possession by one tenant in common who receives all the rents and profits and pays the taxes assessed against the property, no matter for how long a period, cannot be set up as a bar against the co-tenants. In such case the possession of one tenant in common is, in contemplation of law, the possession of all the tenants in common. McMahill v. Torrence, 163 Ill. 277, 45 N. E. 269, and cases there cited. Such possession, however, may become adverse if the tenant in common by his acts and conductdisseises his co-tenants by repudiating their title and claiming adversely to them. ‘To constitute a disseisin there must be outward acts of exclusive ownership of an unequivocal character, overt and notorious, and of such a nature as by their own import to impart information and give notice to the co-tenants that an adverse possession and an actual disseisin are intended to be asserted against them.’ Busch v. Huston, 75 Ill. 343. We are of opinion that under the rule thus announced the acts of plaintiffs in error proven by the evidence in this case were sufficient to amount to a disseisin of defendants in error; but in our view that question is not decisive of this case. It is not, and could not be, denied that defendants in error inherited an interest in the land in controversy from their deceased brother, Francis J. Fletcher. The decree for partition of the land, they not having been made parties to the suit, did not divest them of their interest and vest it in plaintiffs in...