Hitz v. Algreen

• Decision Date: 01 November 1897
• Citation: 170 Ill. 60,48 N.E. 1068
• Parties: HITZ v. ALGREEN.
• Court: Illinois Supreme Court

170 Ill. 60

48 N.E. 1068

HITZ

v.ALGREEN.¹

Supreme Court of Illinois.

Nov. 1, 1897.

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

Bill by Ansley Hitz against Olaf H. Algreen to establish title to land. From a decree dismissing the bill, complainant appeals. Affirmed.

Oliver & Mecartney, for appellant.

G. Frank White, for appellee.

Appellant filed his bill in the superior court of Cook county to establish title to an undivided two-thirds of lot 123 in Hull's subdivision to Chicago; alleging the destruction of the original records by the fire of 1871. The bill proceeded upon the theory that one John Phalen was the owner of this lot in 1870, and that he had not been heard from, and had been absent, for seven years, and therefore a presumption of his death had arisen. On this presumption, appellant had obtained quitclaim deeds from four of the six alleged brothers and sisters of Phalen, and claimed title to an undivided two-thirds of the lot in question. The answer of appellee denied the death of John Phalen, or that the parties executing the quitclaim deeds had any interest whatever in the property, and set up that in 1887 one Leonard C. Stebbins filed a bill, under the burnt record act, in the superior court of Cook county, claiming color of title acquired in good faith to this lot, together with payment of taxes for seven successive years, and thereafter took possession of the property; that a decree was entered on said bill establishing and confirming title in Stebbins, who afterwards, by deed, conveyed to appellee. The only witness called upon to testify in this case was one Bridget Cullen, for complainant below, who represented herself to be a sister of John Phalen. Some question arose as to the names of the parties conveying to appellant, all of whom executed their deeds under the names of Phalen. It developed, however, from the testimony of this one witness, that John Phalen was not a resident of Chicago. He made his home in St. Louis, New Orleans, and Indian Territory, and only occasionally visited Chicago; the last time being about the time of the Chicago fire. The witness testified that she heard from him once or twice within a year after that time, and then communication ceased. It developed, however, that she was unable to read or write, or in any way to carry on a correspondence. The other heirs were scattered in different parts of the country. After the Chicago fire the lot had apparently been abandoned, and no attention paid to it by any one, except by appellee and his grantors, until the procurement of these quitclaim deeds by appellant in 1893. On this evidence the superior court of Cook county, at the close of complainant's testimony, allowed the motion of defendant below, and entered a decree dismissing the bill. A motion to set aside this decree and grant a rehearing was subsequently granted, and appellant was permitted to show an unavailing search for John Phalen in New Orleans. The superior court still retained the same view of the case after the rehearing, and entered a decree dismissing the bill, from which an appeal is prosecuted to this court, seeking to reverse that decree.

PHILLIPS, C. J. (after stating the facts).

The principal question presented by this record is whether or not there was such a legal presumption of the death of John Phalen, the former owner of this lot, as would entitle his heirs to make conveyances of the property. The rule in this state is that the absence of a person for seven years from his usual place of abode or resort, and of whom no account can be given, and from whom no intelligence has been received within that time, raises the presumption that he is dead. Whiting v. Nicoll, 46 Ill. 230. In this case it does not appear that the usual place of residence of John Phalen was in Chicago. He was a horseshoer by trade, and had resided in the Indian Territory a number of years; had engaged in working at his trade in the army through the war; had lived in New Orleans, and, as probably shown by the testimony, also in St....