Johnston v. Masterson

• Decision Date: 22 May 1947
• Docket Number: No. 29962.,29962.
• Citation: 73 N.E.2d 401,397 Ill. 168
• Parties: JOHNSTON et al. v. MASTERSON.
• Court: Illinois Supreme Court

397 Ill. 168

73 N.E.2d 401

JOHNSTON et al.

v.MASTERSON.

No. 29962.

Supreme Court of Illinois.

May 22, 1947.

Appeal from Circuit Court, Kane County; Harry W. McEwen, judge.

Partition proceeding by W. Robert Johnston and others against Walter C. Masterson. From a decree dismissing plaintiffs' bill of complaint, the plaintiffs appeal.

Decree affirmed.

Beverly, Funk & Oddsen, of Elgin (Paul G. Funk, of Elgin, of counsel), for appellants.

Carleton A. Shults, of Aurora, for appellee.

GUNN, Chief Justice.

The plaintiffs, W. Robert Johnston et al., heirs-at-law of John W. Johnston, filed a partition proceeding in Kane county against Walter C. Masterson, a brother and heir and devisee of Elizabeth F. Hunt, deceased. John W. Johnston, the ancestor of plaintiffs, is claimed to have obtained title to one half of the property involved from Charles L. Hunt in 1901. The master reported that plaintiffs had no interest in the premises, and this report was approved by the circuit court. All exceptions were overruled and decree rendered in favor of defendants. The appeal comes direct of this court because a freehold is involved.

The facts out of which the controversy arises are substantially as follows: At the time of his death in 1897, Wilbur C. Hunt owned the premises in question. He was survived by Elizabeth F. Hunt, who was his second wife, and by his two sons, Edwin M. Hunt and Charles L. Hunt. He died intestate. The widow resided in the property. On December 21, 1900, Edwin M. Hunt and Charles L. Hunt executed separate deeds to their stepmother, Elizabeth F. Hunt, which were both recorded on October 28, 1908. Each of these deeds was acknowledged before a notary public, and each had the requisite revenue stamps on the face thereof. On April 24, 1901, Charles L. Hunt made a quitclaim deed to John W. Johnston, the father of his wife, which was recorded on the same date. Elizabeth F. Hunt resided on the property continuously from the death of her husband in 1897 until her own death on December 4, 1934. Charles L. Hunt died October 12, 1935, and shortly thereafter the heirs of John W. Johnston, who died intestate, filed the suit against the devisee of Elizabeth F. Hunt, claiming by virtue of the deed of April 24, 1901.

The complaint was in the ordinary form, and the answer of Masterson alleged that, because of the prior deeds to Elizabeth F. Hunt, coupled with her possession of the premises, the plaintiffs had no title, and that Elizabeth F. Hunt acquired title by seven years of possession under color of title and payment of all taxes levied upon the premises, and likewise by the twenty-year adverse possession statute. The reply denies the deeds to Elizabeth F. Hunt, dated December 21, 1900, were ever delivered, and also denies that the Statute of Limitations was properly invoked as a defense.

The evidence discloses beyond any question that Elizabeth F. Hunt resided on the property continuously from the date of the death of her husband until the date of her death. The proof likewise shows that all general and special taxes, excepting for one year, were paid by Mrs. Hunt, and in that year the receipt was given in her name, but recites it was paid by Charles. She also paid all special assessments and insurance premiums, and at her death the deeds made to her by her stepsons, Charles L. Hunt and Edwin M. Hunt, were found in her safety box.

The defense offered as a witness the son of Charles L. Hunt, deceased, who testified in substance that in 1926 he heard a conversation between Elizabeth F. Hunt and his father, in which she in substance admitted that she had come to the office of Charles L. Hunt and picked up the deeds in question and taken them home with her without authorization, or the payment of any consideration; that she state this was some time after the date of the deeds, because the original transaction had fallen through by reason of her inability to get money.

There is considerable discussion in the briefs concerning the reliability of this evidence and the probability of its truth, which we will not comment upon for the reasons hereafter pointed out. The deeds in question were all admissible in evidence as ancient documents, because at the time of the trial they were more than thirty years old. Reuter v. Stuckart, 181 Ill. 529, 54 N.E. 1014;Bradley v. Lightcap, 201 Ill. 511, 66 N.E. 546. The law presumes such a deed was duly delivered where found in the possession of the grantee, after the death of the grantor, Post v. Weaver, 302 Ill. 169, 134 N.E. 26;Brock v. Stines, 258 Ill. 346, 101 N.E. 585;Johnson v. Fulk, 282 Ill. 328, 118 N.E. 706, and hence the burden of proof that there was no delivery devolves upon the grantor. Waters v. Lawler, 297 Ill. 63, 130 N.E. 335. And it requires clear and convincing evidence to overcome such presumption of delivery. Schroeder v. Smith, 249 Ill. 574, 94 N.E. 969;Standard Trust & Savings Bank v. Carlson, 315 Ill. 451, 146 N.E. 446;Maule v. Maule, 312 Ill. 129, 143 N.E. 422.

Elizabeth F. Hunt was in continuous possession of the property from the date of her deeds, and her possession was sufficient to charge any subsequent purchaser with notice of all legal or equitable claims she had. German-American Nat. Bank v. Martin, 277 Ill. 629, 115 N.E. 721. This principle is so thoroughly established it is unnecessary to cite other numerous cases supporting it. The consequence of the principles announced is a presumption that the deeds to Elizabeth F. Hunt under date of December 21, 1900, conveyed the full legal title of Charles L. Hunt to her, which, merging with her dower and homestead rights, would create a fee simple in her favor, Hooper v. Goldstein, ...