Glos v. Holmes

• Citation: 228 Ill. 436,81 N.E. 1064
• Parties: GLOS et al. v. HOLMES.
• Decision Date: 09 October 1907
• Court: Supreme Court of Illinois

228 Ill. 436

81 N.E. 1064

GLOS et al.

v.HOLMES.

Supreme Court of Illinois.

June 19, 1907.

Rehearing Denied Oct. 9, 1907.

Appeal from Circuit Court, Cook County; Lockwood Honore, Judge.

Bill by Edna Harris Holmes against Jacob Glos and others. From a decree in favor of complainant, defendants appeal. Affirmed.

Jacob Glos and John R. O'Connor, for appellants.

A. M. McConoughey, for appellee.

HAND, C. J.

This is a bill in chancery, filed by the appellee against the appellants in the circuit court of Cook county, to cancel certain tax deeds alleged to be clouds upon her title to the west 20 acres of the E. 1/2 of the N. W. 1/4 of section 31, in township 36 N., range 15 E. of the third P. M., Cook county, Ill. She alleged she obtained title to said premises by descent from her grandfather and grandmother, Henry Harris and Mary Harris; that said premises were improved farm property; and that she was in possession thereof through her tenants. Answers and replications were filed, and a trial had before the court, which resulted in a decree in favor of the appellee,from which decree appellants have prosecuted an appeal to this court.

To show title in herself the appellee introduced in evidence a deed which bears date March 4, 1874, executed by Henry Pfile and Lena Pfile to Henry Harris and Mary Harris, to the introduction of which the appellants objected on the ground that said deed did not describe the premises described in the bill. The premises were described in the deed as ‘a strip of land consisting of 20 acres off from the west side’ of the E. 1/2 of the N. W. 1/4 of section 31, township 36 N., range 15 E. of the third P. M., Cook county, Ill. We see no material difference between a strip of land consisting of 20 acres off from the west side of the E. 1/2 and the west 20 acres of the E. 1/2 of said quarter of said section. In any event, the evidence showed, without dispute, that Henry Pfile owned the land in controversy, and that he sold, and he and his wife conveyed, the same to Henry Harris and Mary Harris by executing to them the deed above referred to, and that Henry and Mary Harris went into possession thereof shortly after the execution of said deed, and remained in possession thereof up to the time of their death, which occurred about 12 years prior to the time this suit was tried, and that the appellee was their only heir at law, and that she has been in possession of said premises since the death of Henry and Mary Harris. In Illinois Central Railroad Co. v. O'Connor, 154 Ill. 550, 39 N. E. 563, it was held, where a deed conveying land is of doubtful construction as to boundaries, the construction given to it by the parties themselves, as shown by their acts, is deemed to be the true construction until the contrary is shown. Subsequent to the execution of the deed by Henry Pfile and wife to Henry and Mary Harris, said Henry and Mary Harris and the appellee have been in possession of the west 20 acres of the E. 1/2 of the N. W. 1/4 of section 31, township 36 N., range 15 E. of the third P. M., Cook county, Ill., which is the land described in the bill. We are of the opinion the circuit court correctly held that the appellee established prima facie title in herself to the land described in her bill.

It appeared from the evidence that a public highway crosses said 20-acre farm, and the contention is made that the appellee failed to establish she was in possession of all the premises described in her bill by reason of the location of said public highway upon and across said farm, as it is said the possession of the portion of said premises contained within the boundaries of said public highway was in the public, and not in the appellee. The premises in question were not within the boundaries of a city or village, and the public had but an easement in the lands covered by said public highway, and the appellee had the possession of said premises subject to said easement (Indianapolis, Bloomington & Western Railroad Co. v. Hartley, 67 Ill. 439, 16 Am. Rep. 624;Postal Telegraph Cable Co. v. Eaton, 170 Ill. 513, 49 N. E. 365,39 L. R. A. 722, 62 Am. St. Rep. 390;Board of Trade Telegraph Co. v. Barnett, 107 Ill. 507, 47 Am. Rep. 453); and by reason of such possession we think appellee could maintain her bill to remove said tax deeds as clouds upon her title to said premises. In numerous cases in this court it has been held that an abutting owner may...