McMahill v. Torrence

• Court: Illinois Supreme Court
• Writing for the Court: PHILLIPS
• Citation: McMahill v. Torrence, 163 Ill. 277, 45 N.E. 269 (Ill. 1896)
• Decision Date: 09 November 1896
• Parties: McMAHILL v. TORRENCE et al.

163 Ill. 277

45 N.E. 269

McMAHILL

v.TORRENCE et al.

Supreme Court of Illinois.

Nov. 9, 1896.

Appeal from circuit court, Warren county; J. J. Glenn, Judge.

Bill for partition by Charles Torrence and others against George W. McMahill. There was a judgment for complainants, and defendant appeals. Affirmed.Kirkpatrick & Alexander, for appellant.

Grier & Stewart and C. A. McLaughlin, for appellees.

A bill in chancery was filed by appellees, afterwards amended, which prayed for the partition of the S. E. 1/4 of section 30 and 10 acres off the east side of the S. W. 1/4 of section 30, both in town 8, range 1, in Warren county. Harry J. Hewitt was the original owner of this land, and died intestate in the year 1850, leaving his widow, Miriam Hewitt, and as his only heirs six children, two of whom were Miriam H. Hewitt Schreeves and Oscar L. Hewitt. The bill avers that Miriam H. Schreeves had conveyed to her two brothers, Oscar L. and H. H. Hewitt, her interest in the undivided two-thirds of these and other premises left by her father, but retained her interest in the undivided one-third which would represent the land covered by her mother's dower; that afterwards the W. 1/2 of said S. E. 1/4 of section 30 and the 10-acre tract were set off as dower to her mother. It represents that the mother died in 1891, after which Mrs. Schreeves conveyed her remaining interest to Charles Torrence and Nathan O. Tate, appellees. The bill avers that O. L. Hewitt has a homestead interest in five-sixths of 13 acres in the northwest corner of said premises, and that appellant in this case owned the undivided seventeen-eighteenths interest in the balance, and appellee the one-eighteenth acquired from Miriam H. Schreeves; and prays partition, and assignment of homestead to O. L. Hewitt. The answer of appellant, McMahill, denies the ownership of appellees in 115 acres off the east side of the southeast quarter, but does not deny their claim in the other 45 acres of this quarter section, or to the 10-acre tract, nor the homestead interest of O. L. Hewitt. It sets up and relies on the statute of limitations as to the 115 acres, and the sole contention in the case is as to this particular number of acres. It is conceded that Harry J. Hewitt was the common source of title. A few years after his death, his daughter Miriam H., by quitclaim deed, conveyed to her two brothers, H. H. and O. L. Hewitt, the undivided two-thirds interest in this and other lands of which her father died seised. She was one of six heirs, and therefore conveyed two-eighteenths interest, the evident intention being that, as the mother, then living, was entitled to dower, no part of the fee in the dower land should pass. By conveyances from the other heirs Oscar L. acquired their interest, and also received a quitclaim deed from his mother; but on the same day of that conveyance he executed an instrument in writing under seal, by which he acknowledged an incumbrance on the west half of the 160 acres and on the 10-acre tract, which was to be equivalent to her dower in all; and this writing was filed for record in the recorder's office. In 1883, Oscar L. Hewitt mortgaged 115 acres off the east side of the quarter section in controversy to Charles Wilson to secure an advance of $2,800. The land was sold by the executor of the Wilson estate under a decree of foreclosure, and a certificate of purchase ripened into a master's deed on September 28, 1886. The purchaser received possession March 1, 1887, and on April, 29, 1887, sold and conveyed it to appellant, McMahill, who went into possession and paid taxes for the years 1887 to 1893, inclusive. Appellees, however, claim this possession was not adverse to that of Miriam H. Schreeves, and consequently not to her grantees, the appellees, who received a conveyance from her of all her interest in this land after her mother's death, which occurred in 1891. It is attempted to be shown that during the period of time appellant was in possession and paying taxes he on several occasions negotiated for the purchase of Mrs. Schreeves' interest, thus recognizing her title. It is also insisted that the title acquired by appellant under the foreclosure proceedings was that of Oscar L. Hewitt, a co-tenant of Mrs. Schreeves, and that the possession of a co-tenant or his grantee under such circumstances could not be adverse to that of another co-tenant. The circuit court, on a hearing, granted a decree in conformity with the prayer of the amended bill, and found that the complainants, appellees here, were entitled to an undivided one-eighteenth of said land, including the 115 acres, and appellant seventeen-eighteenths, and decreed partition on that basis. To reverse that decree appellant prosecutes this appeal.

PHILLIPS, J. (after stating the facts).

The principal question presented and argued by appellant as reason for the reversal of the decree of the circuit court is that the rights and interests of Miriam H. Schreeves, and consequently of her grantees, appellees, are barred by the seven-year statute of limitations, No question is raised as to their interest in 55 acres of this land, the sole controversy being on the 115 acres, title of which was acquired by appellant through foreclosure proceedings. It may be stated as a proposition of law which needs no citation of authority, that a purchaser at a foreclosure sale acquires no greater title than had the mortgagor. Miriam H. Hewitt, by her deed of conveyance to her brother Oscar L. Hewitt, only conveyed two-thirds of her undivided interest, leaving one-eighteenth still invested in herself. We find nothing in this record to indicate that the possession of Oscar L. Hewitt was in any way adverse to that of his sister, Mrs. Schreeves, who was a tenant in common with him. Possession by him and payment of taxes, however long continued, would not constitute a bar under the statute, as one tenant in common cannot set up the statutory bar against his co-tenant. Stevens v. Wait, 112 Ill. 544;Comer v. Comer, 119 Ill. 170, 8 N. E. 796. The reason for this rule is that the possession of one tenant in contemplation of law is the possession of the others, and this is especially so where all the parties derive title from the same deed, or from the same ancestor. Dugan v. Follett, 100 Ill. 581; Ang. Lim. §§ 422, 423. The possession of...