Ditch v. Sennott

• Decision Date: 12 June 1886
• Citation: 117 Ill. 362,7 N.E. 636
• Parties: DITCH and others v. SENNOTT and others.
• Court: Illinois Supreme Court

117 Ill. 362

7 N.E. 636

DITCH and others

v.SENNOTT and others.

Supreme Court of Illinois.

June 12, 1886.

Error to Monroe.

Spencer Tompkins and Thomas Quick, for appellants.

Winkelman & Talbott, for appellees.

CRAIG, J.

This was a bill brought by the plaintiffs in error to partition certain lands in Monroe county. The lands were located in survey No. 564, claim No. 620, and consisted of two tracts, one of 114 acres and one of 80 acres, and they were owned originally by Stephen W. Miles, Sr. Miles, the owner of the land, had a daughter, Amanda C., who married James Sennott. He also had two sons, Stephen W. Miles, Jr., and Alonzo N. Miles. On the twenty-ninth day of November, 1851, Stephen W. Miles and wife executed a deed which purported to convey the two tracts of land to Amanda C. Sennott. The deed was acknowledged on the day of its date, before a justice of the peace, but it was never recorded until September 3, 1884, and it is insisted by defendants in error that the deed was never delivered to the grantee. It will not be necessary to pass upon this question, as the decision of the case may properly be placed on other grounds.

On the seventeenth day of December, 1854, Amanda C. Sennott died intestate, and without issue, leaving as her heirs her husband, James Sennott, her father, Stephen W. Miles, Sr., and two brothers, Stephen W. Miles, Jr., and Alonzo N. Miles. On the thirty-first day of December, 1859, Stephen W. Miles, Sr., died intestate, and in his will he devised a large portion of his estate to his two sons, Stephen W. and Alonzo N. Miles, but the two tracts of land embraced in the deed to his daughter, Amanda C., he devised to his son-in-law, James Sennott. It appears from the record that James Sennott went into the possession of the lands as early as 1851, and he and his wife occupied the same together until the death of the wife, in 1854, and after her death he continued to occupy the lands until he died, on or about the sixth day of December, 1862. Sennott died intestate, and from the time of his death his heirs, and those claiming under them, have continued to occupy the lands until the present time, claiming them as their property. Stephen W. Miles, Jr., died April 16, 1872, and Alonzo N. Miles died about February 27, 1877; and plaintiffs in error, who were complainants in the bill, claim title in the lands as heirs of the said Stephen W. and Alonzo N. Miles, deceased. The claim of plaintiffs in error is based- First, on the deed from Stephen W. Miles, Sr., to Amanda C. Sennott, made in 1851; second, that upon the death of Amanda C. Sennott, in 1854, without issue, two-fourths of one-half of the lands descend to her two brothers, Stephen W. and Alonzo N. Miles. On the other hand, defendants in error claim that the title to the lands remained in Stephen W. Miles, Sr., until his death, and then, under his will, passed to James Sennott as a deviwee in fee.

So far as appears, no claim whatever was ever made to these lands by either Stephen W. or Alonzo N. Miles, and the claim of title interposed by the complainants in the bill, who claim through and under them, is of recent date. But while we do not hold that complainants are concluded by laches, or barred by the 20-years statute of limitations set up as a defense in the answer, for the reason that the decision of the case may properly be placed upon other grounds, yet the long-continued possession of the defendants under claim of title, sanctioned and acquiesced in by Stephen W. and Alonzo N. Miles, and those claiming under them, may be referred to for the purpose of showing that, when Stephen W. and Alonzo N. Miles accepted the provisions of the will of their father, they relinquished any and all interest they might have in the lands in controversy to James Sennott, to whom they were devised by Stephen W. Miles, Sr., as his own property.

That part of the will of Stephen W. Miles, deceased, which relates to James Sennott is as follows:

‘I give and bequeath to my son-in-law, James Sennott, bona fidely, forever, about one hundred and fourteen acres of land, be the same more or less, being part of the east side of survey number five hundred and sixty-four, and claim number six hundred and twenty, and part of the north-east fractional quarter of section number twenty-seven, in township number two south, of range eleven west, to be set off to him so as to include all the land I own in said claim and survey, excepting the part of the same already reserved for Alonzo Miles, and also to include all the lands in said quarter section which I own lying south of the road recently located from Trout Hollow to Eagle Prairie Union Church. I also give and bequeath to him the south-east fractional quarter of section number seventeen, township number two south, range number eleven west, containing sixty-two acres and seventy-six hundredths of an acre; and also part of the north-west fractional quarter of section number twenty-one, same township and range, containing eighteen acres.’

As before observed, Stephen W. Miles, Sr., by the same will, devised a large quantity of property to his two sons, Stephen W. and Alonzo N. Miles, and Stephen W. Miles was named as executor of the will. The provisions of the will were accepted by them, and the question presented is whether, after having accepted the provisions of the will favorable to them, they can reject such portions of the will as may be in conflict with their interest. The doctrine of election as between inconsistent rights, in its application to wills, has been long established, and it is well...