Goralski v. Kostuski

• Court: Illinois Supreme Court
• Writing for the Court: BOGGS
• Citation: Goralski v. Kostuski, 179 Ill. 177, 53 N.E. 720 (Ill. 1899)
• Decision Date: 17 April 1899
• Parties: GORALSKI et al. v. KOSTUSKI et al.

179 Ill. 177

53 N.E. 720

GORALSKI et al.

v.KOSTUSKI et al.

Supreme Court of Illinois.

April 17, 1899.

Appeal from superior court, Cook county; Theodore Brentano, Judge.

Bill by Joseph Kostuski and others against Barbara Malinowski. There was a decree for complainants, and defendant appealed, and, she having died, Anastasia Goralski and others were substituted in her place. Affirmed.

Enoch J. Price, for appellants.

King & Gross and John Stelk, for appellees.

Appellees filed a bill in chancery against Barbara Malinowski, and obtained a decree enjoining her from placing any building, structure, or obstruction upon a certain private alley set forth and described in the bill and decree, and canceling as null and void a deed executedby one P. E. Baird and wife to the said Barbara, purporting to convey to her said private alley. Barbara prosecuted an appeal to this court to reverse the decree, and during the pendency thereof departed this life. Appellants her heirs at law were substituted as appellants. It appeared certain lots in Elston's addition to Chicago were subdivided and replatted, as follows:

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It also appeared that on Stephen Malinowski, husband of said Barbara and father of appellants, purchased lot 5, and that the appellees, respectively, became the owners of lots 1, 2, 3, and 4; that the private alley was laid out and established for the use of said lots 1 to 5, inclusive, and for the mutual enjoyment and convenience of the owners thereof, but was taxed separately from any of said lots; that said Stephen Malinowski paid all taxes on the alley during his lifetime, and departed this life September 2, 1889, intestate, leaving said Barbara, his widow, and appellants, his children and only heirs at law; that he was seised of the title to lot 5, and occupied it as a home for himself and family during his lifetime, and that said Barbara and said appellants continued to so occupy and possess it until the death of said Barbara; that there was situate on the front of said lot 5 a three-story brick flat building and a frame building in the rear; that said Barbara, the widow, with four of the appellants (her children) occupied the frame building, and said Barbara rented the flats in the brick building, received the rents therefrom, and devoted the same to the support of herself and those of the appellants who lived in her family, and for the payment of the taxes on lot 5; that she used the alley in connection with the buildings on said lot 5, and at one time filed a bill in chancery against the appellees to restrain them from closing up or in any manner obstructing said alley; that in 1892, in default of payment of taxes, the alley was sold at the tax sale to one Baird, and, not being redeemed, a tax deed was issued to said Baird, who afterwards, in consideration of the sum of $15, conveyed such rights as he had by virtue of the tax deed to said Barbara; that appellees were never requested by any one to pay taxes on the alley, and that they had tendered to said Barbara, and such tender being refused deposited with the clerk, the sum of $50 to recompense her for all outlays in connection with the taxes upon the alley and the purchase of said tax title from said Baird. The court decreed the deed to Barbara should be canceled, and that she should be paid the said sum of $50 by the clerk.

BOGGS, J. (after stating the facts).

Lot 5 was the homestead of Stephen Malinowski, deceased. Section 2 of the homestead exemption act (Rev. St. c. 52), operated to continue a right of homestead therein for the benefit of his widow, Barbara, and their minor children. Barbara was also entitled to dower in the premises. Neither homestead nor dower had been assigned. The widow and children remained in possession of the premises, and, having unity of possession, their relation to each other was that of tenants in common; the mother, by reason of the parental relation, having the superior right of control.Montague v. Selb, 106 Ill. 49; Freem. Co-Ten. (2d Ed.) § 108.

The alley was established for the common use and benefit of the owners and occupants of lots 1, 2, 3, 4, and 5. It was highly convenient and beneficial to the full and complete enjoyment of said lots by the owners and persons in possession. It was an appurtenant to each of said lots, and the right of possession thereof was common to all occupants and owners of each of said lots. Such occupants and owners, including said Barbara, had unity of possession of the alley and were tenants in common therein. Tenancy in common requires but one unity, that of possession. Freem. Co-Ten. (2d Ed.) § 86. The possession of said lot 5, held...