Catlin Coal Co. v. Lloyd

• Decision Date: 17 June 1899
• Citation: 180 Ill. 398,54 N.E. 214
• Parties: CATLIN COAL CO. v. LLOYD.
• Court: Illinois Supreme Court

180 Ill. 398

54 N.E. 214

CATLIN COAL CO.

v.LLOYD.

Supreme Court of Illinois.

June 17, 1899.

Appeal from circuit court, Vermilion county; F. Bookwalter, Judge.

Ejectment by Henry Lloyd against the Catlin Coal Company. Judgment for plaintiff, and defendant appeals. Reversed.

W. J. Calhoun, H. M. Steely, and J. B. Mann, for appellant.

Lawrence & Lawrence, for appellee.

CARTWRIGHT, C. J.

Appellee had a judgment in ejectment in this case against appellant for the possession of an undivided five-sixths of the coal and minerals underlying the E. 1/2 of the S. E. 1/4 of section 34, in township 19 N., range 12 W., in Vermilion county. We reversed the judgment, and remanded the cause tot he circuit court for further proceedings cause to the circuit court for further proceedings filed. Coal Co. v. Lloyd, 176 Ill. 275, 52 N. E. 144. After the cause was reinstated in the circuit court, the plaintiff, by leave of court, amended his declaration by striking out ‘the undivided five-sixths,’ and adding, ‘the east half of the southwest quarter and the southwest quarter of the southwest quarter of section 35,’ in the same township and range, so as to claim title to the whole of said first tract and 120 acres additional. To this amended declaration a plea of the general issue was filed, and there was a trial, ending with a verdict in favor of plaintiff. After the verdict, on a motion for a new trial, plaintiff was permitted to again amend his declaration by striking out a portion of the lands in the first tract. The motion for a new trial was overruled, and judgment was entered that plaintiff was owner in fee simple, and that he recover from the defendant the following premises, and the possession thereof, with costs of suit, to wit: ‘All of the east half of the southeast quarter of section 34 south of railroad, and east half of southwest quarter and southwest quarter of southwest quarter of section 35, town 19, range 12, west, in Vermilion county, Illinois.’ At the trial both parties claimed title, as before, from Harvey Sandusky, who was conceded to have been the owner in 1863. It was also proved, as it was on the former trial, that said Harvey Sandusky had conveyed the coal and mineral underlying said lands, in 1863 or 1864, by one or the other of the deeds hereinafter mentioned, duly executed by himself and wife, and recorded, and thereby severed the estate in the coal and mineral from the estate in the surface, and that after such severance he had no interest in the estate so conveyed. In 1880 the plaintiff, who had acquired title in the surface, caused the estate in the coal and mineral under these lands to be assessed and taxed separately from the surface, and ever shince that time they have been so assessed and taxed, and the plaintiff has not paid the taxes on the estate in the coal and mineral so assessed and taxed. When the case was here before, we considered and settled the question whether, after such severance, a possession of the surface of the land would carry with it a possession of the coal and mineral in place thereunder, and we held, upon a review of the authorities, that such possession of the surface would not constitute a possession of the separate estate in the underlying coal and mineral. Nevertheless, at the second trial, plaintiff claimed title to the coal and mineral by possession of the surface for seven years, under section 4 of the act in regard to limitations, which is as follows: ‘Actions brought for the recovery of any lands, tenements or hereditaments of which any person may be possessed by actual residencethereonfor seven successive years, having a connected title in law or equity, deducible of record, from this state or the United States, or from any public officer or other person authorized by the laws of this state to sell such land for the non-payment of taxes, or from any sheriff, marshal or other person authorized to sell such land on execution, or under any order, judgment or decree of any court of record, shall be brought within seven years next after possession being taken, as aforesaid; but when the possessor shall acquire such title after taking such possession, the limitation shall begin to run from the time of acquiring title.’ Rev. St. c. 83, § 4. Plaintiff had been in possession of the surface of the land, but disclaimed any title under any other section of the limitation act than this section. To sustain the title so claimed by limitation, he proved that Harvey Sandusky was adjudged a bankrupt; that James C. Lake, registrar in bankruptcy, conveyed to Joseph G. English, assignee of said bankrupt, March 23, 1872, by general deed, all the estate, real and personal, that Harvey Sandusky had on August 25, 1871, and that the district court of the United States, by its order, authorized said assignee to sell all of the real estate of said Harvey Sandusky. He also offered in evidence a deed dated April 22, 1873, from said Joseph G. English, assignee of Harvey Sandusky, bankrupt, to Abraham Sandusky and William Sandusky, conveying the lands described in the amended declaration, in pursuance of a sale thereof under the said order. He also offered two deeds from William Sandusky and wife and Abraham Sandusky and wife to him: one dated March 10, 1876, for the E. 1/2 of the S. E. 1/4 of section 34 and the W. 1/2 of the S. W. 1/4 of section 35; and the other dated March 13, 1880, for the E. 1/2 of the S. W. 1/4 of section 35,-all in township 19, range 12 W. These deeds were accompanied by proof that William Sandusky and Abraham Sandusky had possession of the surface after their purchase, and that plaintiff had possession of the surface of the several tracts from the dates of his deeds, respectively, and that he resided on the same on the west 80 of section 34.

Section 4 of the limitation act, under which plaintiff claimed, requires possession of the premises and estate sought to be recovered, and he could not establish title to them under that section without possession. In Martin v. Judd, 81 Ill. 488, it was said, concerning the same language used in this section (page 492): ‘But the party having title deducible of record must have possession, and, as there are various methods of acquiring and holding possession of real estate, the act advanced one step, and required that the possession must be held in a particular manner; that is, by actual residence upon the land.’ The evidence proved that there were two estates held by separate and distinct titles in severalty, and in such case a possession of the surface does not extend to a possession of the other estate, nor does the possession of the estate in the coal and mineral extend upward to embrace the other estate. The evidence did not prove possession by plaintiff of the coal and mineral. The deed from the registrar to the assignee conveyed nothing but the interest which Harvey Sandusky had at the time of his bankruptcy, and the assignee could convey and the purchaser take no greater rights than were possessed by the bankrupt. It is not pretended that Harvey Sandusky had any right, interest, or title to the coal, or any part of it. On the contrary, it was conceded by both parties on the trial that he had parted with the coal many years before, and had severed that estate from the title generally, by his deed. The deed from the assignee to William Sandusky and Abraham Sandusky, and their deeds to plaintiff, did not serve to reunite the two estates in the plaintiff, but they remained separate as before. Plaintiff was in possession only of the estate conveyed to him, and defendant could not have brought an action against him within seven years next after he took such possession, or at any other time, as contemplated by the statute.

The view of the...