Downing v. Mayes

• Decision Date: 30 October 1894
• Citation: 153 Ill. 330,38 N.E. 620
• Parties: DOWNING v. MAYES.
• Court: Illinois Supreme Court

153 Ill. 330

38 N.E. 620

DOWNING

v.MAYES.¹

Supreme Court of Illinois.

Oct. 30, 1894.

Appeal from circuit court, Cass county; Lyman Lacey, Judge.

Petition for partition brought by Caroline Mayes and others against Finis E. Downing and Jennie Mayes. Petitioners obtained a decree. Defendant Downing appeals. Affirmed.

J. N. Gridley, for appellant.

R. W. Mills, for appellees.

CRAIG, J.

This was a petition for partition, brought by Caroline Mayes, who was formerly the widow of William R. Strickland, and the heirs of Strickland, for partition of N. E. 1/4 of S. E. 1/4, section 31, and N. W. 1/4 S. W. 1/4, section 32, township 17, range 12 W., in Cass county. Jennie Mayes and Finis E. Downing were made defendants to the petition. William R. Strickland died in March, 1870, and it is claimed that he owned the two tracts of land at the time of his death, and that the lands then descended to his widow and children. As to the west 40-acre tract in section 31, there is no controversy. The west 40 in section 32 belonged originally to one Benjamin Newman, and the defendant Finis E. Downing claims title to that tract under deed from the widow and heirs of Newman, executed in April, 1892, while, on the other hand, petitioners claim that William R. Strickland entered into the open, notorious, adverse possession of the land in the spring of 1866, claiming as owner, and continued in such possession until his death, in 1870, and that his widow and heirs (petitioners) have continued in such adverse possession ever since,-a period of over 20 years. On the hearing the court held that petitioners, under the evidence, established title under the 20-year statute of limitations, and entered a decree according to the prayer of the petition.

It appears from the evidence that in the spring of 1866, William R. Strickland bought the 40 in question from Benjamin Newman, and the 40 joining it on the west from one Wagner. He obtained a deed from Wagner, but the evidence fails to show any deed or contract in writing of any character from Newman. What the contract between Newman and Strickland really was is not disclosed by the evidence in this record. At the time the land was of little value, being all flat, swampy land, and being subject to overflow, except five or six acres, which was a sand ridge. The fact that the land at the time was worth so little may have been the reason the parties did not take the trouble to reduce their contract to writing. But, however that may be, it does appear that in the spring of 1866 William R. Strickland entered upon the land, claiming to be the owner by purchase. He built a small house, stable, hogpen, smokehouse, and inclosed the entire 80 acres, with other lands. Strickland occupiedthe land until he died, in 1870. After his death his widow and children continued to occupy the place until the widow married a man named Mayes, in 1877, who resided on land adjoining. After her marriage she and her children continued to cultivate the land until the spring of 1883, when her husband moved to Kansas. Before leaving for Kansas the widow placed her son-in-law, Powers, in the possession of the land, and he farmed it in 1883 and 1884. In the fall of 1884 Powers moved to Kansas, and Mrs. Strickland returned to the neighborhood where the land is located, and made repeated efforts to lease it for the year 1885, but, owing to the water on the land, she was not able to procure a tenant. In the spring of 1885 she made a further effort to rent the land, but was unable to do so. In 1886 and 1887 she attempted to find a tenant for the place, but, owing to the wet seasons, she was unable to procure a tenant. The land was not leased or farmed during the seasons of 1885, 1886, and 1887; but in February, 1888, a man named Mayes rented the land from the widow, and occupied it from March until December, when he turned it over to Jane Mayes, who has continued to occupy the land ever since.

It is well settled by the authorities that, where an adverse possession is relied upon to defeat the title of the owner of lands, the possession must be hostile in its inception, and so continue without interruption for the period of 20 years. It must be an actual, visible, and exclusive possession, acquired and retained under claim of title inconsistent with that of the true owner. The possession need not, however, be under a rightful claim, or under a paper title. Turney v. Chamberlain, 15 Ill. 273. Strickland entered into possession of the land claiming as owner. He inclosed the land, with other lands, by a fence. He erected a house, and resided on the land with his family. He reduced the land to cultivation. From the evidence it is apparent that the possession of Strickland was adverse, actual, visible, and exclusive, acquired and held under claim of title inconsistent with the true owner, and the only question of any serious difficulty is whether the possession was continuous for a period of 20 years. If during the period relied upon the possession was abandoned by Strickland or his heirs, the statute would cease to run from the time of such abandonment, and a subsequent re-entry would not be available to establish a continuous possession. When the possession is lost or abandoned, the seisin of the true owner may be regarded as restored, and a subsequent entry constitutes but a new disseisin, and the statute would only begin to run from the new entry. What constitutes actual possession depends to a great extent upon the nature of the land, and the use or uses to which it may be put. In Brooks v. Bruyn, 18 Ill. 542, it is said: ‘As a general rule, it is sufficient if the land is appropriated to individual use in such manner as to apprise the community or neighborhood of its locality that the land is in the exclusive use and enjoyment of another.’ Same rule was declared in Kerr v. Hitt, 75 Ill. 51. In Coleman v. Billings, 89 Ill. 189, it is said: ‘It is true, appellee testifies that there were some periods of time when no one claiming under Miller or herself was actually residing upon the land; but actual residence, either by the party claiming or a tenant, is not indispensable to continue possession or occupancy. If there is a continuous dominion, manifested by continuous acts of ownership, it is sufficient.’ In Clements v. Lumkin, 34 Ark. 598, in discussing what...