Maring v. Meeker

• Decision Date: 23 April 1914
• Docket Number: No. 9328.,9328.
• Citation: 105 N.E. 31,263 Ill. 136
• Parties: MARING et al. v. MEEKER et al.
• Court: Illinois Supreme Court

263 Ill. 136

105 N.E. 31

MARING et al.

v.MEEKER et al.

No. 9328.

Supreme Court of Illinois.

April 23, 1914.

Appeal from Circuit Court, Clark County; W. B. Scholfield, Judge.

Bill by Summer Maring and others against Charles M. Meeker and others, who filed a cross-bill. From a decree dismissing the bill for want of equity and entering a decree granting the relief demanded in the crossbill, plaintiffs appeal. Affirmed.Everett Connelly, of Marshall, for appellants.

W. T. Hollenbeck, of Marshall, for appellees.

CARTER, J.

This was a bill filed by appellants in the circuit court of Clark county for the partition of 100 acres of land in that county and to quiet title thereof, against appellees. The appellees filed an answer denying the allegations of the bill and alleging that they were the owners of the property in question, and also filed a cross-bill asking that the title be quieted in them to the respective tracts of which they had deeds and that the claims of appellants to any interest in the land be declared null and void. After a hearing the bill was dismissed for want of equity and a decree entered on the cross-bill quieting title in appellees to their respective tracts. Appellants thereupon, by appeal, brought the case to this court.

The land in question consists of an 80-acre tract in section 23 of a certain township in the said county and a [263 Ill. 138]20-acre tract in section 20 of the same township; the two tracts being about 2 1/2 miles apart. Most of the facts concerning the matters of record were introduced in the form of a stipulation of facts signed by both parties. It appears that in 1865 both tracts were owned by William Maring, and that he died in January of that year, intestate, while a soldier in the Union army, leaving him surviving his widow, Caroline, and his three children, Anna (now Anna Banks), Sumner, and Chester, as his only heirs at law; that said Maring and his family usually dwelt on the east half of the northwest quarter of said section 23 next before his death, and that the family were living there at that time as their home, said tract being improved by a dwelling house and outhouses, etc.; that the widow, together with her children, continued to reside on said 80-acre tract after the death of the said Maring, and that she received all the rents, income, and profits from both tracts and paid the taxes (except those for 1866) until some time in 1875, when she removed to another state, the children apparently being left behind; that in 1875 one Nathan W. Nettleton was appointed guardian of said children and proceeded to rent the premises and pay taxes until August or September, 1880, when said widow returned to this state and insisted on said premises being turned over to her, threatening to cause the guardian trouble for taking charge of them; that thereupon the latter consulted the county judge of said county and was advised by him to surrender possession and control of said premises to her, which was done. It further appears that in August or September, 1880, she negotiated with Robert O. Fix to convey to him by warranty deed the said premises, the deed being dated October 16, 1880, and recorded December 1st of that year, the consideration mentioned being $1,000, and that thereupon Fix entered into possession of said premises. She had in the meantime married Daniel W. Working. It further appears that in 1859 Preston & Bros. recovered a judgment for $197.63 against William Maring in the circuit court of Clark county; that an execution was issued thereon June 30, 1868; that the sheriff of the county proceeded to sell the 80-acre tract, and on December 7, 1869, executed a deed under said sale to Catlin Preston for the 80 acres in said section 23, said deed being recorded the same day; that the record does not show that said judgment was revived; that said Preston did not enter into possession of said premises under said deed; that in 1870 he executed to said widow, Caroline Maring, a quitclaim deed to the said 80-acre tract. It further appears that in 1867 both the 80-acre and 20-acre tracts were sold for the taxes of 1866 to one James C. Phillips; that Phillips assigned his certificate to Willism H. Coons, and that a sheriff's tax deed was issued to said Coons December 20, 1869, and duly recorded; that no affidavit or record thereof or proof of service can be found as to compliance with the statute then in force as to obtaining tax deeds. The stipulation of facts also states: ‘It is further agreed that the complainants do not admit nor agree that the deed from the sheriff to Catlin Preston aforesaid, nor the sheriff's tax deed to William H. Coons aforesaid, are competent evidence; but it is only agreed relative thereto that the records show the above state of facts.’ The stipulation further shows that William H. Coons, the owner of said tax deed, never entered into possession of said premises under and by virtue of said deed; that he gave a quitclaim deed of said 80-acre tract, dated November 6, 1880, recorded November 22, 1880, to Robert O. Fix; that Anna Maring (Banks) became of age May 5, 1879, Summer Maring became of age August 5, 1880, and Chester Maring became of age May 5, 1884; that Caroline Maring (Working) departed this life intestate, December 5, 1912. It further appears that Fix entered into possession of said land-both the 80-acre and the 20-acre tracts-under the deed from Caroline Working in 1880; that said Fix has conveyed the title in due course to bona fide purchasers, so that appellee Baker now has a deed to the south half of the 80-acre tract, appellee Meeker a deed to the north half of said tract, and appellee McDaniel a deed to the 20-acre tract; that Fix and his respective grantees, and those claiming under them, have been in possession of said property and receiving all the rents, income, and profits therefrom down to the time of the commencement of this suit and have paid all taxes legally assessed against said land. Coons also quitclaimed the 20-acre tract to Fix at the same time he deeded the larger tract, but the deed was lost without having been recorded.

[1][2] The principal question presented for our consideration is whether the statute of limitations as to this land has run against appellants. There can be no question from this record that Robert O. Fix and his grantees have had actual, open, exclusive, and continous possession of this land for over thirty years. There is also no doubt that it was held by all these people under a claim of right, and, so far as they could show by their acts and words, it has been hostile since Fix entered into possession of the property, in 1880. If it was hostile in its inception, as it would have to be, under the decisions in this state (Reuter v. Stuckart, 181 Ill. 529, 54 N. E. 1014;Downing v. Mayes, 153 Ill. 330, 38 N. E. 620,46 Am. St. Rep. 896;Lambert v. Hemler, 244 Ill. 254, 91 N. E. 435; 1 Cyc. 1027), in order to effect a bar of the legal title, then the five essential elements necessary to constitute an effective adverse possession existed (1 Am. & Eng. Ency. of Law [2d Ed.] 795). The general rule is that one entering as a tenant for life cannot hold adversely to those holding in reversion or in remainder. Neither can the life tenant, by conveying to a third person by a deed purporting to convey the absolute title, create a greater or different estate than he himself possesses. The statute of limitations does not run against a reversioner or remainderman during the prior estate, because during that time he has no right of entry. Having no right of entry, he is not deemed guilty of laches in failing to assert his rights during the life estate. Higgins v. Crosby, 40 Ill. 260;Mettler v. Miller, 129 Ill. 630, 22 N. E. 529;Cassem v. Prindle, 258 Ill. 11, 101 N. E. 241;Lewis v. Barnhart, 145 U. S. 56, 12 Sup. Ct. 772,36 L. Ed. 621. After the death of the original life tenant, the continued possession of his vendee becomes adverse as to remaindermen or reversioners.

[3][4][5][6][7] When did the statute of limitations begin to run against appellants? Counsel for appellees insists that it began to run from the time the mother took possession after returning to this state, in 1880. If so, then it necessarily follows that it continued to run when the possession was transferred by deed to Robert O. Fix and from him to his grantees. The widow, Caroline Maring, was entitled, at her husband's death, to dower in his real estate, and until the assignment of dower she was entitled, under the statute then in force, to ‘retain the full possession of the dwelling house in which her husband most usually dwelt next before his death, together with the outhouses and plantation thereto belonging, free from molestation and rent.’ Rev. Stat. 1845, c. 34, § 27, p. 202. Dower was not assigned before she left this state, in 1875. She remained away for five years. Her right to retain this possession did not differ, in principle, from any other right which the law cast upon her with respect to the property of her deceased husband. Like other rights, it could be defeated by her own acts. Doane v. Walker, 101 Ill. 628; Mettler v. Miller, supra. The right to retain this possession under that law was an additional remedy to enforce her assignment of dower. By leaving the state and remaining away for five years, during which time her children, under their guardian, were in possession of the property, she undoubtedly lost by abandonment her right to this additional remedy, and under that law was not justified, on her return, in demanding repossession of the premises, or any part thereof, until dower was assigned. The stipulation of facts states that she asserted her rights, and the guardian, after consulting with the county judge, surrendered possession and control of the premises to her; but the statement of facts is silent as to whether she based the assertion of her rights on her claim of dower or because of the deed...