Johns v. McKibben

• Decision Date: 02 April 1895
• Citation: 40 N.E. 449,156 Ill. 71
• Parties: JOHNS et al. v. McKIBBEN.
• Court: Illinois Supreme Court

156 Ill. 71

40 N.E. 449

JOHNS et al.

v.McKIBBEN.¹

Supreme Court of Illinois.

April 2, 1895.

Appeal from circuit court, Wayne county; S. Z. Landes, Judge.

Ejectment by George W. Johns and others against E. E. McKibben. Defendant obtained judgment. Plaintiffs appeal. Affirmed.

Creighton & Kramer and R. P. Hanna, for appellants.

H. Tompkins and J. M. Campbell, for appellee.

This was ejectment in the circuit court of Wayne county, by appellants against appellee, to recover the possession of the N. 1/2 of the S. E. 1/4, section 2, township 3 S., range 9 E., in said county. The realty in dispute was originally swamp land. The plaintiffs claimed to be the owners in fee simple, and by stipulation of the parties it was shown that under the acts of congress of September, 1850, authorizing certain states to reclaim swamp and overflowed lands within their respective borders, and an act of the general assembly of Illinois, approved June 22, 1852, providing for the disposition of such lands within this state, title to the land in question vested in one Daniel L. McCauley, plaintiffs' remote grantor, which conveyance was evidenced by a deed of May 7, 1864, from Wayne county to said McCauley; and that by various mesne conveyances in chain the plaintiffs acquired the title thus derived from the United States. The defendant introduced in evidence a quitclaim deed to himself of the land, dated January 18, 1886, recorded January 23, 1886, from one James Mahon, who claimed title under a tax deed, and produced evidence showing possession, under his said deed, from the spring of 1886, and the payment of taxes thereon, for seven successive years, as a bar to the plaintiffs' right of recovery. By agreement of the parties, trial by a jury was waived, and the cause submitted to the court. A judgment was entered, finding the defendant not guilty.

H. Tompkins and J. M. Campbell,

PHILLIPS, J. (after stating the facts).

This action was brought to the October term, 1893, of the Wayne circuit court, and it was shown, and in effect conceded, upon the trial, that the plaintiffs in ejectment were the owners of the connected chain of title, and, unless barred by limitation, entitled to recover the land. The defendant, to maintain the issues on his part, introduced in evidence a quitclaim deed from James Mahon, dated January 18, 1886, recorded January 23, 1886, purporting to convey to defendant the entire S. E. 1/4 of section 2, township 3 S., range 9 E., in Wayne county. That said deed, under which defendant claimed title to the land in question,-being the north half of said quarter section,-was claim and color of title, made in good faith, does not seem to be questioned. The defendant also introduced evidence to show that he entered into actual possession of the land, under his deed, in the spring of 1886, and has since continued in such possession, and paid the taxes assessed for the years 1885, 1886, 1887, 1888, 1889, 1890, 1891, and 1892, inclusive. It is practically conceded that the defendant was in the actual possession, continuously, for the period of seven years, if the facts and circumstances proved were sufficient to show that he entered into and was in such possession as early as the spring of 1886. In other words, the first question arising in this case is in respect of the possession by defendant in 1886, and it is strenuously insisted by counsel for appellants that the evidence failed to establish such possession by the defendant in the year 1886, as is necessary to make out the full term of seven years before the commencement of the action, and to complete the bar of the statute. The section of the statute referred to requires that the possession of land thereunder be actual, and the question of whether there has been such possession in any given case is one of fact for the jury to determine from the evidence and circumstances shown. As said in Morrison v. Kelly, 22 Ill. 624: ‘What acts may or may not constitute possession are necessarily varied, and depend to some extent upon the nature, locality, and use to which the property may be applied, the situation of the parties, and a variety of circumstances necessarily have to be taken into consideration in determining the question. They must necessarily be left to the jury, whose peculiar province it is to pass upon the question of possession. Ewing v. Burnet, 11 Pet. 53.’ Actual occupancy of the entire tract is not to be deemed indispensableor necessarily essential, In the case just quoted from, the court said: ‘And to constitute such a possession, there must be such an appropriation of the land to the individual as will apprise the community in its vicinity that the land is in the exclusive use and enjoyment of such person. * * * But it has been held that neither actual occupancy, cultivation, nor residence, are necessary to constitute actual possession. Ewing v. Burnet, 11 Pet. 53. And when the property is so situated as not to admit of any permanent, useful improvements, and the continued claim of the party has been evidenced by public acts of ownership, such as he would exercise over property which he claimed in his own right, and would not exercise over property which he did not claim, has been held to be such possession as will create a bar under the statute of limitations.’ And it has accordingly been held, in a large number of decided cases in this court, that the visible and exclusive appropriation of a part of a tract of land, claiming the whole, under color of title, or a deed purporting to convey the whole, is, in law, an actual possession of the entire tract, except so far as there may be adverse possession. Brooks v. Bruin, 18 Ill. 539;Prettyman v. Wilkey, 19 Ill. 241;Hardisty v. Glenn, 32 Ill. 62;Austin v. Rust, 73 Ill. 491;Coleman v. Billings, 89 Ill. 183;Keith v. Keith, 104 Ill. 402;Lancey v. Brock, 110 Ill. 609; Railroad Co. v. Nugent, 152 Ill. 119, 39 N. E. 263. A consideration of the cases cited will show that it has generally been held that, if there is a continuous dominion, manifested by continuous acts of ownership, it is sufficient to establish an actual possession under the statute in question, and that an actual residence is not indispensable. Coleman v. Billings, supra; Kerr v. Hitt, 75 Ill. 51.

The evidence shows that the land in question was swamp and overflowed timber lands, and, until the defendant entered into possession thereof, vacant and unoccupied. While it is apparent that the land was not fenced until 1887,...