Clarke v. Clarke

• Decision Date: 22 October 1932
• Docket Number: No. 21294.,21294.
• Citation: 349 Ill. 642,183 N.E. 13
• Parties: CLARKE v. CLARKE et al.
• Court: Illinois Supreme Court

349 Ill. 642

183 N.E. 13

CLARKE

v.CLARKE et al.

No. 21294.

Supreme Court of Illinois.

Oct. 22, 1932.

Bill for partition by Carroll C. Clarke against John J. Clarke and others, including Jane Wetmore, wherein last-named defendant filed a cross-bill. From the decree, Jane Wetmore appeals.

Affirmed.Appeal from Circuit Court, Kankakee County; Arthur W. De Selm, judge.

E. P. Harney, of Momence, for appellant.

W. H. Dyer and Gower, Gray & Gower, all of Kankakee (Eben B. Gower, of Kankakee, guardian ad litem), for appellees.

JONES, J.

Carroll C. Clarke filed a bill in the circuit court of Kankakee county for the partition of 120 acres of farm land. The bill, as afterwards amended, alleged that the complainant was the owner in fee as a tenant in common of an undivided one-fifth interest in said lands, subject to the rights of his father, John J. Clarke, as surviving husband of Emeline Clarke, deceased. John J. Clarke died prior to the entry of a decree and no notice of his rights was taken therein. The bill also alleged the interests of all other cotenants. The complainant is a devisee of Emeline Clarke and claims title through inheritance from his grandfather, Chester Wetmore, and from certain uncles and an aunt. Jane Wetmore, the appellant, by her answer and cross-bill denied that the complainant, or any one other than herself, has any right or title to the fee in any of the premises, but alleged that she is the sole owner thereof. Her claim of ownership is based on a group of facts and circumstances which she contends gives her sole ownership of the lands under sections 1 and 6 of the Statute of Limitations (Smith-Hurd Rev. St. 1931, c. 83, §§ 1, 6). After a hearing the chancellor entered a decree directing that partition be made of the premises according to the prayer of the amended bill. The cross-bill was dismissed for want of equity. The decree provided that in the event of a subsequent decree for sale an accounting should preceede any order of distribution of the proceeds of the sale. From that decree Jane Wetmore has appealed.

Chester Wetmore, the grandfather, acquired title to 80 acres of the land by deed from the Illinois Central Railroad Company in 1865. He died intestate in 1883, leaving three sons and four daughters as his only heirs at law. These heirs became vested with the title to said tract as tenants in common by descent. The remaining 40-acre tract was entered by Eleazer Gray under a government patent issued in 1849. Gray and his wife, Rhoda, conveyed it in 1852 to Henry Moe, in whom the title deducible from the government appears to stop. In 1867 Rhoda Shaub (formerly Rhoda Gray) executed a written lease of this tract, with the exception of one-half acre where a dwelling house was located, to Chester Wetmore and his son Warren. The lease was for the term of the life of Rhoda Shaub, who died between 1885 and 1890. In March 1870, Elizabeth G. Neihardt and her husband, as heirs of Isaac Gray, a brother of the aforesaid Eleazer Gray, executed and delivered a quitclaim deed for the 40-acre tract to Chester and Warren Wetmore. What title the grantor had to convey does not appear, but the record discloses that from 1867 Chester Wetmore and his son Warren were in the undisputed possession of the entire 120 acres and continued in such possession until the death of Chester in 1883. During his life he occupied a residence located on the 80-acre tract. With him lived his daughter Lovisa Ann and his sons Warren and Leonard. Another son, Samuel, had been living in the state of New York prior to 1870, but in that year he and his family came to Illinois and took up their residence on the 40-acre tract. He aided his father and brothers in the farming operations for about two years and then returned to New York. One of the witnesses in the case testified that the Wetmores ‘bought Sam out’ when he moved away. However, there is no written evidence of that fact nor is there anything to show that he claimed any title to the land at that time. After the death of Chester, his sons Leonard and Warren continued to occupy the farm. No administration was had upon the estate of the father and nothing was done toward a distribution of his property. Warren and Leonard collected all of the issues and profits of the farm, paid all the taxes, kept up the repairs, and made lasting and valuable improvements on the farm. Warren died in 1904, interstate, unmarried, and without issue. No administration was had upon his estate nor has there been any division of his property among his heirs. Leonard continued in the exclusive possession of the farm after the death of Warren and until his own death, May 17, 1930. During this period of time he operated the entire farm and made valuable improvements, paid all taxes and assessments, collected all rents, issues, and profits, kept insurance on buildings, fenced and tiled the land, and paid out approximately $1,715 in discharge of a note and trust deed on the 80-acre tract, executed by his father. In July, 1912, he procured a quitclaim deed from his sister Eveline Exline, which purported to convey the entire farm. He died intestate, leaving the appellant, Jane Wetmore, his widow, and four adult children, as his only heirs at law. The children afterwards conveyed all of their interest in the land to their mother, who with certain members of her family have continued to occupy it.

The record does not show that any of the descendants or heirs of Chester Wetmore other than Warren and Leonard, except, perhaps, Eveline Exline, who conveyed to Leonardin 1912, ever made any claim to possession of or title to the land prior to bringing this proceeding; but the record contains substantial evidence that during the period of Leonard's occupancy after the death of his brother Warren he laid claim to ownership of all the farm and that he was locally reputed to be its owner. However, the complainant, Clarke, testified that he had resided in Chicago for twenty-seven years; that he and his wife had visited the farm in 1912 and again in 1917; that while there in 1917 Leonard told him that some day a portion of the land would belong to him as it was a part of his grandfather's estate. The complainant said he took no steps to assert his right or title and made no demand for his share of rents or income, because he was of the belief that his uncle, who was getting old, would ultimately make provision for a just and proper settlement.

We will first consider the appellant's claim of title under section 1 of the Limitations Act. The rule is that there must not only be twenty years' continuous, uninterrupted possession, but such possession must be hostile in its inception and so continue. It must be visible, exclusive, and notorious, and be acquired and retained under claim of title inconsistent with that of the true owner. All of these elements must concur. Stowell v. Lynch, 269 Ill. 437, 110 N. E. 51;Andrews v. Floyd, 308 Ill. 559, 139 N. E. 883. 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 cotenants. In such case the possession of one tenant in common is in contemplation of law the possession of all the tenants in common. Such possession, however, may become adverse if the tenant in common by his acts and conduct disseises his cotenants by repudiating their title and claiming adversely to them. Steele v. Steele, 220 Ill. 318, 77 N. E. 232. Before the possession of one tenant in common can be adverse to the cotenant there must be a disseisin or ouster by some outward act of ownership of an unequivocal character, overt and notorious, and of such nature as to impart information and notice to the cotenant that an adverse possession and disseisin are intended to be asserted by the tenant in possession. Simpson v. Manson, 345 Ill. 543, 178 N. E. 250. Leonard Wetmore's possession of the farm up to the time of Warren's death was not in any way adverse, and nothing occurred thereafter from his...