Cover v. James

• Decision Date: 24 October 1905
• Citation: 217 Ill. 309,75 N.E. 490
• Court: Illinois Supreme Court
• Parties: COVER v. JAMES et al.

217 Ill. 309

75 N.E. 490

COVER

v.JAMES et al.

Supreme Court of Illinois.

Oct. 24, 1905.

Appeal from Circuit Court, Union County; Wm. N. Butler, Judge.

Bill by Bessie Cover against Clark James and others. Decree for defendants, and plaintiff appeals. Reversed.

James Lingle and A. Ney Sessions, for appellant.

William D. Lyerle and Taylor Dodd, for appellees.

Appellant, Bessie Cover, a minor, by her legal guardian, filed her bill in the circuit court of Union county against appellees, in which she sought to have canceled, set aside, and declared null and void a certain certificate of purchase from the sheriff of Union county to the appellee Clark James covering certain lands which she claimed to own, and to have the title to the land decreed to be in her. The bill, as amended, averred that Jehu R. Cover, father of appellant, in his lifetime was the owner in fee of certain lands therein described, and on October 29, 1901, he and his wife, by a warranty deed, conveyed said premises to their children A. Ford Cover and the appellant, Bessie Cover, the material parts of which deed are as follows: ‘This indenture witnesseth: That the grantors, Jehu R. Cover and Josie Cover, his wife, of the city of Anna, in the county of Union, and state of Illinois, for and in consideration of the sum of $2,400 in hand paid, convey and warrant to A. Ford Cover and Bessie Cover, of the city of Anna, county of Union, and state of Illinois, the following described real estate, to wit: * * * Hereby releasingandwaiving all rights under and by virtue of the homestead exemption laws of this state. In case of the death of either A. Ford Cover or Bessie Cover, the other to have the whole of said property without litigation.’ The bill further averred that the grantors meant and intended by said deed to make said grantees joint tenants, with the right of survivorship, and that the effect of said deed in law and equity was to make said grantees joint tenants and to convey a contingent remainder in them to the survivor; that on June 1, 1902, the grantees went into possession of the premises under said deed, and the said Bessie Cover is now in the actual possession thereof and has paid all taxes due thereon; that the said Jehu R. Cover left surviving him his widow, Josie Cover, and Charles Cover, Jessie Stokes, Dollie Culley, A. Ford Cover, and Bessie Cover, his only heirs at law; that on July 1, 1904, A. Ford Cover died, leaving as his heirs at law Josie Cover, Bessie Cover, Jessie Stokes, Charles Cover, and Dollie Culley; that on May 1, 1902, the said Clark James, one of the appellees, obtained a judgment against Dollie Culley, and caused execution to be levied by the sheriff of Union county upon her alleged interest in the said lands, which were sold on October 24, 1904, to Clark James, and a certificate of purchase issued therefor; that the said Jessie Stokes, Charles Cover, and Dollie Culley claim some interest in said lands as heirs of A. Ford Cover; that the certificate of purchase is a cloud upon the title of Bessie Cover in said premises, and the claim of the other heirs tends to depreciate the value of said land. The prayer of the bill is that the certificate of purchase be set aside and declared void as against the said Bessie Cover and as a cloud upon her title, and that the same be delivered up and canceled, and that the title of said land be decreed to be in the said Bessie Cover. The appellee Clark James filed his general and special demurrer to said bill, and the other appellees, Charles Cover, Jessie Stokes, and Dollie Culley, filed their cross-bill, alleging that the deed of conveyance to A. Ford Cover and Bessie Cover was not in joint tenancy, but as tenants in common, and that complainants in the cross-bill were the heirs of the said A. Ford Cover, and prayed partition of the premises. The demurrer to the original bill as amended was sustained; and, appellant electing to stand by her bill, the same was dismissed for want of equity. A motion was then made by appellant to strike the cross-bill from the files, which motion was overruled, and an appeal has been prosecuted to this court.

WILKIN, J. (after stating the facts).

The decision of the case depends upon the proper construction to be placed on the deed from Jehu R. Cover to A. Ford Cover and Bessie Cover. The contention of counselfor the appellant is that the deed conveyed the property therein mentioned to the grantees as joint tenants for life, with the remainder to the survivor of them, or to convey a contingent remainder to the survivor, and therefore all right, title, and interest in the said A. Ford Cover ceased upon his death. He died before the levy and the sale under which the appellee James claims, and, if appellant's position is correct, he took nothing by the purchase, and his certificate of sale should have been set aside; also, if A. Ford Cover took but a life estate, nothing descended to his heirs, and the motion of appellant to strike their cross-bill from the files should have been sustained. On the other hand, it is insisted on behalf of the appellees that said deed conveyed to the grantees the estate in fee simple as tenants in common, and therefore the undivided one-half of the same, upon the death of A. Ford Cover, descended to his heirs, and the interest of Dollie Culley, one of such heirs, was subject to levy and sale on the judgment of said Clark James. Section 13, c. 30, p. 441, of Hurd's Revised Statutes of 1903, provides that ‘every estate in lands which shall be granted, conveyed or devised, although other words heretofore necessary to transfer an estate of inheritance be not added, shall be deemed a fee-simple estate of inheritance, if a less estate be not limited by express words or do not appear to have been granted, conveyed or devised by construction or operation of law.’ Here the deed does expressly state that in case of the death of either of the grantees the survivor shall have the whole of the property, thus clearly limiting the estate granted to both jointly for life, with the right of survivorship.

It is insisted, however, by counsel for appellees that this last provision cannot be given effect, because it does not appear in the granting clause of the deed, or, as is said, does appear in the habendum; and reliance is placed upon the case of Palmer v. Cook, 159 Ill. 300, 42 N. E. 796,50 Am. St. Rep. 165. In that case a deed somewhat similar to the one now before the court was construed as conveying the fee-simple title to the grantees, and it was held that the expression, ‘in case either of the grantees dies without an heir, her interest to revert to the survivor,’ was an attempt to mount a fee upon a fee, and was therefore void. The granting clause of that deed was held to convey the fee-simple title under the provisions of section 9 of chapter 30, supra. If a fee-simple title was in fact granted, it is clear that that estate could not be limited or qualified by the subsequent language. Merely because the deed was substantially in the form prescribed by ...