Dawson v. Edwards

• Court: Illinois Supreme Court
• Writing for the Court: CARTER
• Citation: Dawson v. Edwards, 189 Ill. 60, 59 N.E. 590 (Ill. 1901)
• Decision Date: 20 February 1901
• Parties: DAWSON et al. v. EDWARDS et al.

189 Ill. 60

59 N.E. 590

DAWSON et al.

v.EDWARDS et al.

Supreme Court of Illinois.

Feb. 20, 1901.

Appeal from circuit court, McLean county; John H. Moffett, Judge.

Bill by Sarah H. Edwards, Ettie Brown, Earl Brown, and others against Emma Dawson and others. From a decree in Favor of complainants, defendants appeal. Reversed, with direction to dismiss the bill.Barr & Pollock and Fifer & Barry, for appellants.

Frank B. McKennan and Owen T. Reeves, for appellees.

CARTER, J.

In April, 1897, the appellees brought their bill in the court below for the partition of 80 acres of land of which Jacob Harness died seised in fee simple in 1840. At his death, Jacob Harness left surviving him, besides his wife, who died in 1851, four children, his only heirs at law, viz.: His son, Isaac Harness; and three daughters, Sarah H., who was then married to John Edwards, and had children living; Mahala, who was then married to Henry Busic, and had children living; and Debby, who was married to James Chance. John Edwards died in 1870. The personal property of Jacob Harness at the time of his death was worth about $400, and this tract of land about $100. Isaac Harness took possession of the land upon his father's death, and thereafter continued in possession of it, paid all taxes upon it, improved it, collected and used the rents and profits as his own, claiming the land as his own property, until his death, in 1895, except for a period of five years from 1871 (when he sold and conveyed it by a deed of general warranty, for a valuable consideration, to his son, William Harness) until 1876, when the latter, for a valuable consideration and with a like deed, sold and conveyed the tract to said Isaac. Isaac Harness, upon his death in 1895, devised the land to his daughter Emma Dawson for life, with remainder to the heirs of her body. Said Emma and her children are the appellants herein, and were defendants below to the bill.

It was not shown that either of the three sisters of Isaac Harness ever conveyed her interest in the land to him, but the defenses of his successors to the title (who continued in possession and paid all taxes to the time of the filing of the bill) were-First, that upon the death of Jacob Harness his said four children came together, and by agreement the three daughters took and received the personal property, and the son, Isaac, the land in question, and that possession was taken according to this agreement; second, that the suit was barred by the statute of limitations, respectively, of 20 years and of 7 years; and, third, that the complainant Sarah H. Edwards was barred and estopped by the verdict and judgment against her in a certain action which she had brought in the circuit court of McLean county against the executors of the will of Isaac Harness, wherein, under certain counts of her declaration, she sought to recover the purchase price or the value of her interest in the land upon an alleged sale to Isaac, alleged to have been made by her after the death of her husband, John Edwards, in 1870. The court below sustained the defense of estoppel by judgment against Sarah H. Edwards, but found and decreed that the appellees, who were the heirs of Mahala Busic, were entitled to the one-fourth interest in the land inherited by her from her father, said Jacob Harness. Sarah H. Edwards has assigned cross errors, contending here that she is not barred or estopped, but is the owner of her alleged one-fourth interest, and is entitled to have the same set off to her. Debby Chance died in 1867, and her husband, James Chance, in 1892. They had no children, but she had an illegitimate child before her marriage, who was her heir, and who was made a defendant to the bill and defaulted. It was decreed below that his interest was barred by the statute of limitations, and he has not appealed or assigned error here. The only interests to be considered are the one-fourth claimed by appellee Sarah H. Edwards, and the one-fourth claimed by the other appellees, who are the heirs of Mahala Busic.

There was some evidence tending to prove a division of the estate of Jacob Harness in 1840 by his four children among themselves, by which Isaac took the land, and the three daughters and their husbands took the personal property or the proceeds of the sale of it, but no deed was shown to have been made, and what the real facts were would be difficult to prove with any certainty after the lapse of so many years. It clearly appears, however, from the evidence, that during all of the long period of years from 1840 to 1895, when Isaac Harness died, except the period of five years from 1871 to 1876, he held the undisputed possession of the whole of the 80-acre tract, openly, notoriously, and adversely, claiming it as his own property, paying all taxes on it, renting it, and collecting and using as his own all rents and profits derived from it, and making improvements on it of more or less value. He also conveyed it, with other adjoining lands, to his son, William Harness, in 1871, by a deed with full covenants of title, for the expressed consideration of $12,000, and, after five years, it, with said other lands, was reconveyed to him by a like deed for the expressed consideration of $10,000. These deeds were placed on record at the time. It is obvious that unless the case falls within some exception or reservation in the statute, or is for some legal reason not subject to its provisions, all right of the complainants to assert title in the property was barred by limitation before this suit was brought.

As the law stood in 1840, when Sarah Edwards and Mahala Busic became vested with their respective interests, the husband of each became seised of an estate by the curtesy initiate, inasmuch as there was seisin in the wife, marriage, and the birth of children capable of inheriting. The husband was entitled to the possession, and was the proper party to sue for its recovery. The statute of limitations did not, therefore, run against the wife until the intervening estate in the husband had terminated. Shortall v. Hinckley, 31 Ill. 219. Inasmuch as Mahala Busic died in 1858, leaving her husband surviving her, his interest in her one-fourth was an estate by the curtesy consummate, and he alone could sue for the possession. It follows that the statute did not begin to run against Mahala Busic during her life, nor against her descendants during her husband's life, because of his intervening life estate.

Counsel for appellants contend that the statute would run against his estate by the curtesy, and that it was barred at the end of 20 years,-that is, in 1860,-and that when it became thus barred the statute would begin to run against the remainder in fee vested in the heirs of Mahala, his...