Lambert v. Hemler

• Decision Date: 07 April 1910
• Citation: 244 Ill. 254,91 N.E. 435
• Parties: LAMBERT et al. v. HEMLER.
• Court: Illinois Supreme Court

244 Ill. 254

91 N.E. 435

LAMBERT et al.

v.HEMLER.

Supreme Court of Illinois.

Feb. 16, 1910.

Rehearing Denied April 7, 1910.

Error to Circuit Court, McLean County; Colostin D. Myers, Judge.

Suit by David Lambert and others against Ann Hemler. There was a decree dismissing the bill for want of equity, and plaintiffs bring error. Reversed and remanded.Lillard & Williams and N. W. Brandican, for plaintiffs in error.

Welty, Sterling & Whitmore, for defendant in error.

This was a bill in chancery filed in the circuit court of McLean county by the plaintiffs in error for the partition of 80 acres of land in said county.

It appears from the pleadings and proof that John Lambert, a resident of McLean county, died in the year 1872, intestate, leaving Nancy Lambert as his widow and no children him surviving. At the time of his death he was the owner of 80 acres of land in that county, occupied by himself and wife as a homestead. The plaintiffs in error are his brothers and sisters, and nephews and nieces, descendants of deceased brothers and sisters. On the death of John Lambert his wife, Nancy, continued to occupy and carry on the farm for a period of 20 years, and thereafter leased the same until the time of her death, in the year 1905. During all of said time she appled to her own use the profits and rents produced by the real estate, paid taxes, made limited improvements and repairs on the buildings and fences, and paid an assessment for a drainage ditch amounting to $600, mortgaging the real estate to raise that amount. She also deeded to the drainage commissioners the right of way for the ditch, which crossed a corner of the farm. It is conceded that Mrs. Lambert, on the death of her husband, became the owner of one half of said real estate and was entitled to dower and homestead in the other half, and that dower and homestead were never assigned or set off to her therein by the heirs.

Nancy Lambert died in 1905, testate, and by her will devised to defendant in error, Ann Hemler, a niece, said 80 acres of land-that is, not only the portion of the real estate passing to her by the statute of descent upon the death of her husband, but also the 40 acres claimed by plaintiffs in error as the heirs of John Lambert. Shortly after the death of Nancy Lambert a bill was filed by plaintiffs in error seeking to have partitioned the real estate, and alleging that they were the owners of the undivided one-half thereof by inheritance from said John Lambert, and that upon his death they became seised of the same, subject to the dower and homestead interest of Nancy Lambert therein. To this bill the defendant in error, Ann Hemler, sole devisee of Nancy Lambert, filed an answer, admitting these facts, and alleging that Nancy Lambert, by reason of adverse possession under claim of ownership for a period of more than 20 years, was at the time of her death the owner of all of said real estate, and that defendant in error, Ann Hemler, as her sole devisee, became the owner thereof, and that plaintiffs in error have no title they can assert to said real estate.

From the evidence, in addition to the facts hereinbefore set out, it appears that the farm was spoken of among the neighbors as the ‘Nancy Lambert farm’; that once, about 15 years before her death, Nancy Lambert, in the presence of her legal adviser and in the absence of all of the co-tenants, made the statement that the farm was hers, and again thereafter, when her will was written, stated to him the same thing in substance, and that her husband's brothers and sisters said they never expected anything from the farm, and at another time and to a different witness said she owned the farm, but feared the drainage tax would take it.

The evidence shows the farm, at the time of Lambert's death, was not worth to exceed $30 an acre, and part of it was very wet; that after the drainage ditch was dug the farm became more productive and that its present value is $200 per acre, and that the increase in value is not due to any improvements made by Mrs. Lambert, but by reason of the gradual advance of land values in the vicinity of this land.

The master in chancery found and reported in favor of the plaintiffs in error, and recommended that a decree for partition in accordance with the prayer of the bill be entered. The court sustained exceptions to the master's report, and a decree was entered dismissing the bill for partition for want of equity, to reverse which decree this case was brought to this court on writ of error.

HAND, J. (after stating the facts as above).

There is but one question in this case, and that is whether the facts relied upon by defendant in error, Ann Hemler, are sufficient, in law, to establish her contention that the possession of Nancy Lambert of the 80-acre tract subsequent to the death of her husband was such as ripened into title which passed to her by the terms of said will. If the limitation is established by the facts, the title of the testatrix thereby acquired is such an interest as would pass to the defendant in error under the terms of the will. Gosselin v. Smith, 154 Ill. 74, 39 N. E. 980. The burden is upon defendant in error, Ann Hemler, to establish all the material facts necessary to sustain her contention by a preponderance of the competent evidence heard in the case-that is to say, she must prove that the possession of her testatrix was hostile or adverse, actual, visible, notorious and exclusive, continuous, and under claim of title. Clark v. Jackson, 222 Ill. 13, 78 N. E. 6. ‘All these elements must be made out by clear and positive proof.’ Roby v. Calumet & Chicago Dock Co., 211 Ill. 173, 71 N. E. 822. ‘Adverse possession cannot be made out by inference or implication, for the presumptions are all in favor of the true owner, and the proof to establish it must be strict, clear, positive, and unequivocal.’ Zirngibl v. Calumet & Chicago Dock Co., 157 Ill. 430, 42 N. E. 431. It was said in Kirby v. Kirby, 236 Ill. 255, on page 265, 86 N. E. 259, on page 264: ‘From the earliest decision in this state to the present time it has been held that a party claiming title by adverse possession must prove his possession was adverse to the true owner by clear and positive evidence. This cannot be established by inference, but the proof must show clearly that the party in possession claimed the land as his own, openly and exclusively.’

Ordinarily there is no adverse possession between co-tenants. The possession of one co-tenant is the possession of all, in contemplation of law, and not...