Gordon v. Dickison

• Decision Date: 21 January 1890
• Citation: 131 Ill. 141,23 N.E. 439
• Parties: GORDON v. DICKISON.
• Court: Illinois Supreme Court

131 Ill. 141

23 N.E. 439

GORDON

v.DICKISON.¹

Supreme Court of Illinois.

Jan. 21, 1890.

Error to circuit court, Peoria county.

Petition by Margaret C. Dickison against Samuel Gordon to recover dower, as the widow of Griffith Dickison, deceased, in the south-west quarter of section 21. The circuit court decreed petitioner dower in the west half of said quarter section, and the defendant brings error.Arthur Keithley

, for plaintiff in error.

McCulloch & McCulloch, for defendant in error.

CRAIG, J.

As the court decreed against the petitioner as to the E. 1/2 of the 1/4, and as no cross-errors have been assigned, the decree of the court in regard to that tract of land is not involved. It will be observed that the defendant admitted in his answer that Griffith Dickison, during coverture, was seised of the W. 1/2 of the 1/4, except the N. E. 1/4 thereof; and as to that 20 acres it is insisted that the decree is erroneous, because the evidence introduced on the trial fails to show seisin in Griffith Dickison during coverture. No title papers were introduced in evidence; but it was proven that, as early as 1835 or 1836, Griffith Dickison settled on S. E. 1/4 of section 21, which joins the land in controversy on the east, and erected a house, and resided there for many years. His son testified that his father first fenced in the farm land; and, as he thinks, as early as 1865 or 1866 he set out his fences inclosing the S. W. 1/4 of 21. The W. 1/2 was called the ‘Runell 80,’ and he used it for sheep pasture. The E. 1/2 of the 1/4, or ‘Riggs 80,’ was also used for pasture. It also appears that Dickison was in possession when he sold to Gordon; and upon the completion of the sale the possession of the premises was transferred to him,-the 20 acres with the balance of the 80. After the inclosure of the land, in 1865, it was used in connection with, and as a part of, the farm upon which Dickison resided.

Possession of land under a claim of ownership has always been regarded as evidence of a fee. Davis v. Easley, 13 Ill. 196, is a case in point. In speaking of the rights of a party in possession of a tract of land, the court said a party in the actual possession of land may maintain trespass against a stranger for any disturbance of his possession. The law presumes that he is rightfully in possession until the contrary appears. And in actions of ejectment, and for injuries to the inheritance, the possession of a tract of land by a party claiming to be owner in fee is prima facie evidence of his ownership and seisin of the inheritance, and throws upon his adversary the burden of rebutting the presumption thus raised. See, also, Railroad Co. v. Cobb, 68 Ill. 54. Here the evidence that Dickison was in possession of the land, claiming to own it, and using it as a part of his farm during coverture, and subsequently selling it to the defendant, was evidence that he was seised of a fee, and, in the absence of any rebutting evidence, sufficient, so far as the question under consideration is concerned, to authorize the decree.

On the hearing the defendant offered to prove that after Dickison and his wife separated, and after she had commenced the divorce proceeding, she committed adultery, but the evidence was rejected, and the ruling on this question is relied upon as error. At common law a divorce a vinculo matrimonii bars the claim of dower; for, as said by Kent, (volume 4, p. 54,) to entitle the party claiming dower, she must have been the wife at the death of the husband. But chapter 41 of our Revised Statutes, entitled ‘Dower,’ has modified...