Long v. Morrison

• Court: Illinois Supreme Court
• Writing for the Court: HAND
• Citation: Long v. Morrison, 251 Ill. 143, 95 N.E. 1075 (Ill. 1911)
• Decision Date: 11 October 1911
• Parties: LONG et al. v. MORRISON et al.

251 Ill. 143

95 N.E. 1075

LONG et al.

v.MORRISON et al.

Supreme Court of Illinois.

June 20, 1911.

Rehearing Denied Oct. 11, 1911.

Appeal from Circuit Court, Christian County; J. C. McBride, Judge.

Suit for partition by James E. Long and others against Virginia L. Morrison and another. Decree for complainants, and defendants appeal. Reversed and remanded.James M. Taylor and Leslie J. Taylor, for appellants.

Hogan & Wallace, for appellees.

HAND, J.

This was a bill in chancery, filed by James E. Long, Florence Dorrah, and Elizabeth A. Manners in the circuit court of Christian county, against Virginia L. Morrison and Eliza A. Long, for the partition of lots 8 and 9, in block 10, in the original town of Taylorville, in said Christian county. The bill was amended, and an answer and replication were filed; a trial was had without a reference, and a decree was entered, finding that James E. Long and Florence Dorrah were each the owner in fee of the undivided one-fourth, and Elizabeth A. Manners was the owner in fee of the undivided one-half of said premises, and a decree for partition was entered accordingly. Virginia L. Morrison and Eliza A. Long have prosecuted an appeal to this court.

It appears from the record that on the 10th day of August, 1855, one Thomas Long purchased lots 8 and 9, in block 10, in the original town of Taylorville; that on the 28th day of February, 1861, said Thomas Long and Annis Long, his wife, conveyed said lots in fee to their sons, B. F. Long and F. M. Long; that shortly thereafter F. M. Long departed this life intestate leaving his father and mother and six brothers and sisters him surviving as his only heirs at law; that subsequent to the death of said F. M. Long numerous conveyances were made by and between his heirs to portions of said premises, so that in 1893 the title in fee to the undivided seven-sixteenths of said premises stood of record in Annis Long, mother of F. M. Long, and the title in fee to the undivided nine-sixteenths of said premises stood of record in the heirs of B. F. Long, his brother; that for many years prior to the year 1893 Thomas Long and several members of his family had been engaged in the hotel business in Taylorville, the hotel carried on by them being known as the Long House; that said lots 8 and 9 were located near said hotel, and were used in connection with the hotel as a barn and horse lot; that in the year 1892 (Thomas Long and B. F. Long both being dead) Annis Long sold the hotel, and used the proceeds of the sale, in part, in erecting a dwelling house, which cost about $2,500, upon said lots 8 and 9, in which for a time Annis Long (the widow of Thomas Long), Eliza A. Long (the widow of B. F. Long), and Thomas W. Long and Elizabeth A. Manners, a brother and sister of B. F. Long, resided as their home; that in 1893 Annis Long executed a deed to the east half of lot 8 and all of lot 9 to Thomas W. Long and Elizabeth A. Manners, and a deed to the west half of lot 8 to George W. Long, another son, who subsequently conveyed said west half of lot 8 to Thomas W. Long and Elizabeth A. Manners. Thomas W. Long, a widower, resided upon the premises until his death, and Elizabeth A. Manners, a widow, resided on the premises until about the time the original bill was filed in this case, when the possession of the premises was turned over to James E. Long by her. The complainants James E. Long and Florence Dorrah are the children of Thomas W. Long, deceased, and Elizabeth A. Manners is a daughter of Annis Long, deceased, and the defendant Eliza A. Long is the widow, and the defendant Virginia L. Morrison the daughter and sole heir at law, of B. F. Long, deceased. The original bill charged that the complainants James E. Long and Florence Dorrah were each the owner in fee of the undivided 7/64 part of said premises, that Elizabeth A. Manners was the owner of the undivided 14/64 part of said premises, and that Virginia L. Morrison was the owner of the undivided 36/64 part of said premises, subject to the dower of her mother, Eliza A. Long, therein, and that the dwelling house thereon had been constructed by Annis Long, deceased. The amended bill denied that Virginia L. Morrison or Eliza A. Long had any interest in said premises, and charged that one-fourth thereof belonged to James E. Long, one-fourth to Florence Dorrah, and one-half to Elizabeth A. Manners, and on the final hearing the court so held; it being the view of the court, as expressed in the decree, that the interest of Virginia L. Morrison and Eliza A. Long in said premises had been barred by the statute of limitations.

It is admitted that the title to the said premises, in the year 1893, stood of record jointly in Annis Long and the heirs of B. F. Long; Annis Long being the owner of seven-sixteenths and the heirs of B. F. Long the owners of nine-sixteenths thereof. The sole question, therefore, to be determined in this case is, Had the complainants, at the time they filed their amended bill in this case, acquired, by limitation, title to the portion of said premises theretofore held by Virginia L. Morrison as sole heir at law of B. F. Long, deceased?

[1] In 1893 Annis Long and B. F. Long were tenants in common of said premises, and the law is well settled that before a tenant in common can acquire his cotenant's title under the limitation laws of this state, although he is in possession of the premises, he must show an ouster of his cotenant; and to constitute a disseisin of a cotenant there must be an open, hostile, and adverse possession of the premises by the occupying cotenant as against the cotenant out of possession-such a possession as shows an intention to hold possession of the premises to the exclusion of the joint owner, who is out of possession. In Busch v. Huston, 75 Ill. 343, on page 347, it was said: ‘It is not sufficient that he [a cotenant] continues to occupy the premises and appropriates to himself the exclusive rents and profits, makes slight repairs and improvements on the lands, and pays the taxes, for all this may be consistent with the continued recognition of the rights of his cotenants. To constitute disseisin, ‘there must be outward acts of exclusive ownership of an unequivocal character, overt and notorious, and of such a nature as by their own import to impart information and give notice to the cotenants that an adverse possession and an actual disseisin are intended to be asserted against them.’' It is obvious, we think, that the evidence found in this record falls far short of showing an ouster or disseisin as against Virginia L. Morrison, the heir of B. F. Long, deceased.

Elizabeth A. Manners, a complainant, in answer to the question, ‘Mrs. Manners, did you ever tell Mrs. Long or Mrs. Morrison here that you claimed that property-you and Mr. Long-and that they had no interest in it?’ testified as follows: ‘No, sir; I never did. I never made any claim to them that Mr. Long and I owned that property exclusively. The matter of ownership of that property was never discussed between us, to our knowledge.’

Eliza A. Long, in answer to the question, ‘Now, I will ask you, Mrs. Long, if any claim was ever made, of any kind, by either Mrs. Long in her life or by Mr. T. W. Long or Mrs. Manners, that they were the exclusive owners of that property?’ testified as follows: ‘Nothing was ever said to me in any way that myself or husband or daughter did not have an interest in the property. It was never mentioned. The question of ownership was never discussed by Mrs. Long or Mrs. Manners or myself, nor by Thomas W. Long and Mrs. Manners and myself.’

Virginia L. Morrison testified: ‘I am well acquainted with Mrs. Manners and Thomas W. Long. They are aunt and uncle, respectively. I remember when the house was built on that property. I knew at that time that my father had an interest in the property. My grandmother built that house. I have never had a word of conversation with Thomas W. Long or Mrs. Manners with regard to the ownership of that house. Neither of them at any time ever claimed to me that they were the owners of the property. I never discussed the matter with them in any way. My relation with them during all these years has always been friendly. There has never been any dispute between us, prior to the bringing of this suit, as to the ownership of these two lots. We never discussed it. There never has been any discussion between us, and they never made any claim that I had no interest in the property.’ And again: ‘Now you may state, if you knew that you owned an interest in the property, why you never made any claim before the bringing of this suit.’ She answered: ‘Because of the request my father had made of my mother. And Grandma had built the...