Mercer v. Wayman

• Decision Date: 25 September 1956
• Docket Number: No. 33959,33959
• Citation: 9 Ill.2d 441,137 N.E.2d 815
• Parties: M. Hattie MERCER et al., Appellees, v. Paul B. WAYMAN et al., Appellants.
• Court: Illinois Supreme Court

Page 815

137 N.E.2d 815

9 Ill.2d 441

M. Hattie MERCER et al., Appellees, v. Paul B. WAYMAN et al., Appellants.

No. 33959.

Supreme Court of Illinois.

Sept. 25, 1956.

As Modified on Denial of Rehearing Nov. 19, 1956.

McLaughlin & McLaughlin, Sullivan, for appellants.

Crain & Hall, Centralia, for appellees.

DAVIS, Justice.

Plaintiffs, widow and children of Fred L. Mercer, deceased, filed this suit in the circuit court of Marion County against the defendants, the surviving sons of Lora Wayman, deceased, and the widow and daughter of Verne Wayman , deceased, to set aside certain oil and gas leases executed by defendants and to have themselves declared the sole owners of the land in question. The circuit court granted the relief prayed for in the complaint, and, a freehold being involved, defendants appealed directly to this court.

The facts in the record are undisputed. The 40-acre tract of land was originally owned in fee simple by John W. Mercer who died intestate prior to 1920, leaving him surviving as his sole heirs-at-law his widow, five sons and two daughters.

Shortly thereafter one of the daughters, Lora Wayman, died intestate, leaving her surviving, Oscar T. Wayman, her husband, and three minor sons, Verne Wayman, June Wayman and Paul Wayman.

Thereafter, on May 7, 1920, the widow of John W. Mercer, four of the sons, and the surviving daughter, together with their spouses, joined in a quitclaim deed conveying the 40-acre tract to the remaining son, Fred L Mercer and M. Hattie Mercer, his wife. Oscar T. Wayman, the husband of the deceased Lora Wayman, also joined in the conveyance, both individually and as 'father and natural guardian of Verne Wayman, June Wayman, Paul Wayman, children of Lora Wayman, deceased.' This deed purported to grant to Fred and Hattie Mercer 'all interest' in the 40-acre tract. The consideration for the deed was the assumption of an existing mortgage on the property.

Fred L. Mercer and M. Hattie Mercer entered upon the property and farmed it continuously until the present time. The property was assessed in the name of Fred L. Mercer and they paid all taxes when due. They leased land, collected crop rentals, and were generally reputed to be the owners thereof. They executed mortgages on the property in April, 1920, December, 1920, and April, 1926, and thereby warranted their fee simple title to the premises. All of these mortgages were recorded.

Both the plaintiffs and the defendants, or their predecessors in title, executed oil and gas leases on the entire tract. The plaintiffs executed such leases in 1938, 1939, and 1953. Subsequent to the execution of the latter oil and gas lease by plaintiffs, wherein J. T. Thompson was lessee, the defendants also executed oil and gas leases on the same tract to the said J. T. Thompson. These are the leases which the plaintiffs seek to set aside. On April 4, 1939, June Wayman, Paul Wayman, and Verne Wayman, now deceased, executed an oil and gas lease to the Texas Company, which was thereafter recorded. This lease was subsequently released by the Texas Company.

The youngest of the children of Lora Wayman attained his majority on July 1, 1926. Neither the defendants nor any deceased member of the Wayman family ever made claim to any right, title or interest in the tract of land in question, nor have they sought an accounting of the rents and profits; and neither the plaintiffs for any deceased member of their family ever asserted to the defendants or their predecessors in title any claim of possession adverse to them.

The plaintiffs contend that their possession of the tract in question has ripened into title and defendants are barred from any claim as to the premises by reason of both the 20-year Statute of Limitations (Ill.Rev.Stat.1953, chap. 83, par. 1) and the 7-year Statute of Limitations (Ill.Rev.Stat.1953, chap. 83, par. 6). Defendants insist that they are tenants in common of an undivided one seventh of the tract, and, as such, are not barred by the 20-year Statute of Limitations because there was been no actual disseizin or ouster. They further contend that the deed to Fred L. Mercer was not good color of title as to the interests of the minor sons of Lora Wayman.

The sole issue presented to this court is whether defendants are, as the trial court held, barred from their claim by virtue of the Statute of Limitations.

While the plaintiffs exercised such control and dominion over the property as to be hostile and adverse to all strangers, the rules with regard to adverse possession are different in the case of one cotenant who claims adversely to other cotenants. The doctrine was well stated in Simpson v. Manson, 345 Ill. 543, 551, 178 N.E. 250, 253: 'The rule is well settled that the mere possession by one tenant in common who receives all the rents and profits and pays the taxes assessed against the property, no matter for how long a period, cannot be set up as a bar against the cotenants. In such case the possession of one tenant in common is in contemplation of law the possession of all the tenants in common. Such possession, however, may become adverse if the tenant in common by his acts and conduct disseizes his cotenants by repudiating their title and claiming adversely to them. Long v. Morrison, 251 Ill. 143, 95 N.E. 1075; Steele v. Steele, 220 Ill. 318, 77 N.E. 232. Before the possession of one tenant in common can be adverse to the cotenant there must be a disseizin or ouster by some outward act of ownership of an unequivocal character, overt and notorious, and of such nature as to impart information and notice to the cotenant that an adverse possession and disseizin are intended to be asserted by the tenant in possession. Andrews v. Floyd, 308 Ill. 559, 139 N.E. 883. Such notice need not, however, be formal in its nature (Roberts v. Cox, 259 Ill. 232, 102 N.E. 204) and if one tenant in common holds exclusive possession, claiming the land as his, and his conduct and possession are of such a character as to give notice to his cotenant that his possession is adverse, the statute of limitations will run. (Tillotson v. Foster, 310 Ill. 52, 141 N.E. 412; Hahn v. Keith, 170 Wis. 524, (527,) 174 N.W. 551).'

These rules have been consistently followed in this State. As recently as Williams v. Fulton, 4 Ill.2d 524, 123 N.E.2d 495, we held that in order to start the running of the Statute of Limitations against a cotenant, it must be shown that the tenant in possession gave actual notice to the tenant out of possession that he was claiming adversely, or that the tenant out of possession had received notice of such claim of the tenant in possession by some act which would amount ot an ouster or disseizin. In White v. Harris, 206 Ill. 584, at page 592, 69 N.E. 519, at page 522, we stated: "A party claiming title by adverse possession always claims in derogation of the right of the real owner. He admits...