Kepley v. Scully

• Decision Date: 21 April 1900
• Citation: 185 Ill. 52,57 N.E. 187
• Parties: KEPLEY et al. v. SCULLY et al.
• Court: Illinois Supreme Court

185 Ill. 52

57 N.E. 187

KEPLEY et al.

v.SCULLY et al.

Supreme Court of Illinois.

April 21, 1900.

Error to circuit court, Effingham county; Samuel L. Dwight, Judge.

This is an action of ejectment begun on August 6, 1895, by defendants in error, Robert Scully and Rachel Lilly, against plaintiffs in error, Henry B. Kepley and James Phifer, to recover the possession of lots 9 and 10, in block 2, in the Western addition to the town, now city, of Effingham, in Effingham county. The plea of not guilty was filed by both defendants below, and a separate plea was filed by Henry B. Kepley, denying possession of the premises at the time of bringing suit, and denying that demand for possession of the same was made of him before the suit was brought. A jury was waived, and the cause was tried by the court, who heard the evidence for the parties, and found the issues for the plaintiffs below, and rendered judgment in their favor against the defendants below, the present plaintiffs in error, for the possession of the premises and costs of suit. Defendants bring error. Affirmed.Henry B. Kepley, for plaintiffs in error.

S. F. Gilmore, for defendants in error.

MAGRUDER, J.

In this action of ejectment the defendants in error proved that they, and the parties under whom they hold, were in adverse possession of lots 9 and 10 for a period of more than 20 years before the commencement of the action, to wit, from February, 1868, to some time in 1890 or 1891. On February 24, 1868, Thomas R. Dutton and wife conveyed lot 9 by warranty deed to Jesse Jennings. Theretofore, on October 23, 1867, Alfred Dixon and wife, by a warranty deed, had conveyed lot 10 to Jesse Jennings. Jesse Jennings was in possession of the lots up to January 9, 1880, when he and his wife conveyed the same by warranty deed to Mary E. Scully, afterwards Mary E. Claytor, she having married M. W. Claytor. By deeds made in October, 1889, and July, 1890, and March, 1893,-the last two deeds having been executed to correct some slight mistake in the description contained in the first deed,-Mary E. Claytor conveyed the lots to her son Robert Scully, and her daughter Rachel Lilly, formerly Rachel Scully, said Robert and Rachel being the defendants in error. From January 9, 1880, Mary E. Scully, afterwards Mary E. Claytor, and her children, the defendants in error, were in possession of the lots down to 1890 or 1891.

The possession of Mrs. Scully and her children from January 9, 1880, can be tacked to the possession of Jennings prior to that date, in order to make the full period of 20 years of adverse possession. Where several persons enter on land in succession, the several possessions can be tacked, so as to make a continuous possession, where there is privity of estate, or the several titles are connected. This privity thus required to constitute continuous adverse possession may be effected by deed or conveyance or parol agreement or understanding. Weber v. Anderson, 73 Ill. 439;Faloon v. Simshauser, 130 Ill. 649, 22 N. E. 835;Ely v. Brown, 183 Ill. 575, 56 N. E. 181; Busw. Lim. §§ 239, 240. When Jennings deeded the lots to Mary E. Scully on January 9, 1880, he at the same time delivered to her possession of the premises. So, also, when she executed the deed to her children, the defendants in error, she delivered the possession of the premises to them. Even though the deed made by Jennings to her, and the deed made by her to defendants in error, may have contained such a defective description as to require correction, yet there was such privity between the successive occupants that the several possessions may be referred to one entry, because there was a parol delivery of possession by Jennings to Mrs. Scully and by Mrs. Scully to defendants in error. This was sufficient to maintain the continuity of the possession, as each subsequent occupant succeeded to the possession of the preceding occupant. The possession may not have been maintained at all times during the period aforesaid by the parties in person, but, when absent themselves, they were in possession through their tenants. The house, occupied by the parties or their tenants, was upon lot 10; but lot 9 was used in connection with the house, and as a part of the premises upon which the house stood. There is some conflict in the testimony as to whether lot 9 was inclosed during the whole of the 20 years. There is proof on the part of the defendants in error that it was so inclosed, and there is proof on the part of the plaintiffs in error that it was not inclosed at all times. But there was evidence enough in favor of such inclosure to justify the court below, before whom the case was tried without a jury, in finding in favor of the defendants in error upon this issue.

It being established that the defendants in error were in adverse possession of the lots for more than 20 years, they are entitled to recover in an action of ejectment upon the title acquired by such possession. It is now well settled that an adverse possession for a period of 20 years may not only be used as a defense to the title thereby acquired, but it may be enforced by affirmative action, either against a third party or against the original owner, where the latter succeeds in obtaining possession after the bar of the statute has become complete. In other words, title by an adverse possession of 20 years may be used as a sword to attack with when such possession is disturbed. Riverside Co. v. Townshend, 120 Ill. 9, 9 N. E. 65; Faloon v. Simshauser, supra; Ang, Lim. § 381; Newell, Ej. p. 719; Busw. Lim. § 231.

Besides the deeds already mentioned, the defendants in error sought to establish a chain of title by a regular series of conveyances from the state of Illinois to themselves. Without entering into particulars, we think that they failed thus to establish a record title. But, as they proved an adverse possession for 20 years, the deeds introduced, though failing to show a connected chain of title, were not improperly admitted, as they show the character of the possession and the intent with which it was held. Barger v. Hobbs, 67 Ill. 592;Coombs v. Hertig, 162 Ill. 171, 44 N. E. 392. The mere fact that the defendants in error undertook to prove more than was required could not effect their right to recover. Coombs v. Hertig, supra.

To maintain their defense, the plaintiffs in error, upon the trial below, introduced two tax deeds: First, a tax deed to Henry B. Kepley, dated October 10, 1889, for lot 10 and the east one-tenth of lot 9, made by virtue of a tax sale of said property on June 1, 1887, under a judgment and order of sale entered against said lots by the county court of Effingham county, on May, 16, 1887; second, a tax deed to said Kepley, dated July 25, 1890, for the west nine-tenths of lot 9, made by virtue of a sale of said property on June 1, 1888, under a judgment and order of sale entered by the said county court on May 12, 1888.

Several objections are urged by defendants in error to these tax deeds, but we deem it necessary to notice but one of them, and that is that there was no valid precept or process for a sale in the case of either of said tax judgments or tax sales. Section 194 of the revenue act provides as follows: ‘On the day advertised for sale, the county clerk, assisted by the collector shall carefully examine said list upon which judgment has been rendered, and see that all payments have been properly noted thereon, and said clerk shall make a certificate to be entered on said record following the order of court that such record is correct, and that judgment was rendered upon the property therein mentioned for the taxes, interest and costs due thereon, which certificate shall be attested by the clerk under seal of the court and shall be the process on which all real property or any interest therein shall be sold for taxes,’ etc. 3 Starr & C. Ann. St. (2d...