Knight v. Knight

• Decision Date: 17 February 1899
• Citation: 178 Ill. 553,53 N.E. 306
• Parties: KNIGHT v. KNIGHT et al.
• Court: Illinois Supreme Court

178 Ill. 553

53 N.E. 306

KNIGHT

v.KNIGHT et al.¹

Supreme Court of Illinois.

Feb. 17, 1899.

Appeal from circuit court, Cass county; T. N. Mehan, Judge.

Action by Thomas A. Knight and others against John Knight. Judgment for plaintiffs. Defendant appeals. Affirmed.Cyrus Epler and J. N. Gridley, for appellant.

Mills & McClure, for appellees.

On the 6th day of September, 1875, one William Knight conveyed to the appellant lots 3 and 4 in block 96 in Beard & Weare's addition to the city of Beardstown. The grantor, with his children, then lived in a dwelling house situate on the lots, and occupied the premises as a home. He continued to reside in the dwelling and occupy the premises after the execution of the deed as before, until the date of his death, which occurred June 5, 1896,-a period of 20 years and 9 months. At the time of his death, his son, Arthur Knight, lived with him in the said home premises as one of his family; and said Arthur continued to reside there until he was ousted by a judgment rendered in an action of forcible detainer, brought by the appellant against him. The appellant so being in possession, the appellees, who are the heirs at law of said William Knight, deceased, on the 23d day of March, 1897, instituted this, an action in ejectment, to recover possesson of the premises. A trial before a jury resulted in a verdict and judgment in their favor, from which this appeal has been prosecuted.

BOGGS, J. (after stating the facts).

The theory upon which the judgment was rendered is that the ancestor of the appellees held actual, hostile, notorious, exclusive, open, and continuous adverse possession of the premises, for the full period of 20 years, and thereby for tghe full period of 20 years, and thereby acquired title in fee simple thereto, and that such title descended to and vested in the appellees, his heirs at law. It was not error to permit counsel for appellees to ask witnesses in that behalf to state who was in ‘the possession’ of the premises, etc., and who was in ‘the control’ of the premises, etc., or who was generally reputed to be the owner of the premises, etc., the ground of objection being the questions sought the mere opinion of the witness. The questions related to periods of time within said period of 20 years. ‘An inference necessarily involving certain facts may be stated without the facts when the inference is equivalent to a specification of the facts; but, when the facts are not necessarily involved in the inference,-e. g., when the inference may be sustained upon either of several distinct phases of fact, neither of which it necessarily involves,-then the facts must be stated. In other words, when the opinion is the mere shorthand rendering of the facts, then the opinion can be given, subject to cross-examination as to the facts on which it is based.’ Whart. Ev. § 510. In Iron Co. v. Roberts (Ala.) 6 South. 349, it was said: ‘It was competent for the witness Skelton to testify that the defendant went into possession of the lands, and thereafter controlled them. Control is a statement of collective facts involving management and acts of ownership. If the plaintiff desired to know on what the witness founded his conclusions of facts, he should have drawn it out on cross-examination.’ Proof that the premises were generally reputed to be the property of the ancestor of appellees was competent, as tendingto establish the notoriety of the possession, that the appellant was aware of such possession, and also that such possession was under claim of title. Sparrow v. Hovey, 44 Mich. 63, 6 N. W. 93;McAuliff v. Parker (Wash.) 38 Pac. 744. In Land-Grant Co. v. Dawson, 151 U. S. 586, 14 Sup. Ct. 458, Dawson's claim of title to the lands in controversy was based on adverse possession, and it was ruled it was competent to show he was generally reputed to be the owner of the lands.

The court permitted appellees to put in evidence declarations of their ancestor while he was in the possession and control of the property after the execution and delivery of the deed to appellant, such declarations being, in effect, bare assertions of a present claim of ownership of the premises. There seems to be unanimity in authorities that such declaration are admissible when accompanying an act of possession which is provable. The declarations in such instances are regarded as part of the act, or a ‘verbal act’ indicating present purpose or motive. Whether, to be regarded as admissible in evidence, the declaration must be shown, in such cases as this, to be contemporaneous with some distinct and particular act of possession, has been questioned by respectable authorities. The fact here involved is possession of the premises for the prescribed period of time under claim of title. Actual possession for that period is in the nature of a continuous act, and the better view is that particular acts of dominion over the property, and the declarations of the possessor while in possession as to his claim to the property, are, though not accompanying an act of possession, of the res gestae of the fact involved, and hence equally admissible as evidence. In Duffey v. Presbyterian Congregation, 48 Pa. St. 51, it was well said: ‘The declarations of a person in possession of land are always received as explanatory of the title he is claiming. They are part of the res gestae of his possession.’ In Ricard v. Williams, 7 Wheat. 59,speaking upon the same point, it was said: ‘From the very nature of the case, therefore, it must depend upon the collateral circumstances what is the quality and extent of the interest claimed by the party (in possession), * * * and the declaration of the party while in possession, equally with his acts, must be good evidence for the purpose.’ The rule was fully stated by the supreme court of the state of Wisconsin in Austin v. Allen, 6 Wis. 134, and reiterated by the same court in Roebke v. Andrews, 26 Wis. 311. The same rule obtains in the courts of California. Bank v. Staples, 98 Cal. 189, 32 Pac. 936. The principle upon which the admissibility of such evidence rests is...