Mette v. Feltgen

• Decision Date: 16 January 1894
• Citation: 36 N.E. 81,148 Ill. 357
• Parties: METTE et al. v. FELTGEN.
• Court: Illinois Supreme Court

148 Ill. 357

36 N.E. 81

METTE et al.

v.FELTGEN.¹

Supreme Court of Illinois.

Jan. 16, 1894.

On rehearing. For former opinion, see 27 N. E. 911.

BAILEY, J.

This was an action of ejectment brought by Anna M. Feltgen against Henry, August, and Louis Mette to recover the undivided one-half of lots 8 and 9 in block 5 in Murray's addition to South Chicago. The defendants pleaded not guilty, and the cause being tried by the court, a jury being waived, it was found that the plaintiff was the owner in fee of an undivided one-half of the lots, and that the defendants were guilty of unlawfully withholding possession thereof from her. A motion by the defendants for a new trial being overruled, judgment was entered that the plaintiff recover possession of the undivided one-half of the lots, and that a writ of possession issue in her favor therefor. The defendants bring the record to this court by appeal.

The facts are all admitted by stipulation, and are, in substance, as follows: On the 23d day of April, 1878, Theodore H. Schintz, the common source of title of the plaintiff and defendants, executed and delivered to Peter Mayer and Anna Mayer, his wife, a deed which, omitting the signature and certificate of acknowledgment, is as follows: ‘This indenture witnesseth that the grantor, Theodore H. Schintz, a bachelor, of the city of Chicago, in the county of Cook and state of Illinois, for the consideration of one dollar, conveys and quitclaims to Peter Mayer and Anna Mayer, his wife, not as tenants in common, but as joint tenants, of the city of Chicago, county of Cook and state of Illinois, all interest in the following described real estate, to wit, lots eight and nine in block five in Murray's addition to South Chicago, situated in the county of Cook and state of Illinois, hereby releasing and waiving all right under and by virtue of the homestead and exemption laws of this state. Dated this twenty-third day of April, 1878.’ Anna Mayer, one of the grantees in the deed, died intestate April 4, 1879, leaving, surviving her, her husband and cograntee, and also leaving the plaintiff, her daughter by a former marriage and her only heir at law, who was then a minor between 11 and 12 years of age. On the 16th day of February, 1882, Peter Mayer executed a deed conveying the lots to August Mette and Henry Mette, and on the same day the plaintiff, then being a minor between 14 and 15 years of age, executed a deed by which, for an expressed consideration of $50, she conveyed and quitclaimed to August and Henry Mette all her interest in the lots. On the 11th day of September, 1885, the plaintiff attained the age of 18 years, and on the 15th day of June, 1888, she executed, acknowledged, and recorded an instrument expressly revoking, annulling, and declaring void her deed executed during her infancy; and July 13, 1888, as a further act of disaffirmance, she instituted this suit, and shortly thereafter commenced a suit in chancery to set the deed aside, and to recover her interest in the lots. August and Henry Mette, immediately after the execution of the deeds to them, together with their codefendant, Louis Mette, took possession of the lots, and excluded the plaintiff therefrom, and were in possession thereof, to the exclusion of the plaintiff, at the time of the commencement of this suit, and are still in possession. On the 12th day of January, 1884, August and Henry Mette executed to Louis Mette a deed by which they conveyed to him a fractional interest in the lots.

The conveyance by the plaintiff to August and Henry Mette, made during her minority, having been expressly revoked and disaffirmed by her after becoming of age, may be disregarded, and the rights of the parties are to be determined precisely as though no such conveyance had been made. The claim of the defendants is that the estate of Peter Mayer and Anna Mayer, his wife, in the lots, was a joint tenancy, with the common-law incident of survivorship, and consequently that, upon the death of Anna Mayer, Peter Mayer, by right of survivorship, became tenant of the lots in severalty, to the exclusion of the heir at law of Anna Mayer, and that Peter Mayer's conveyance of the lots to August and Henry Mette vested in them the entire estate. The plaintiff, on the other hand, insists that, whether the deed from Schintz to Peter Mayer and wife created a joint tenancy or not, it was, under our statute, a tenancy in respect to which there was no right of survivorship, and therefore that on the death of Anna Mayer her joint interest descended to and became vested in the plaintiff, as her sole heir at law. There can be no doubt that the parties in the Schintz deed intended thereby to create an estate in joint tenancy, and not a tenancy in common; and it must be admitted, we think, that the language employed was apt and sufficient for the accomplishment of that purpose. It only remains to be determined whether, under our statute, the right of survivorship can still be regarded as an incident of an estate in joint tenancy. The doubt on this question grows out of the apparent conflict between section 5, c. 30, of the Revised Statutes, entitled ‘Conveyances,’ and section 1, c. 76, entitled ‘Joint Rights and Obligations.’ These statutes are in pari materia, and are to be construed together, and very much aid in such construction may be obtained by examining their history, as a part of the legislation of the state. On the 13th day of January, 1821, the general assembly passed ‘An act concerning partitions and joint rights and obligations,’ the first and second sections of which were as follows: ‘Section 1. Be it enacted,’ etc., ‘that all joint tenants or tenants in common who now are, or hereafter shall be possessed of any estate of inheritance, or estate less than those of inheritance, either in their own right or in the right of their wives, may be compelled to make partitions between them of such lands, tenements or hereditaments, as they now hold or hereafter shall hold, as joint tenants, or tenants in common. Provided, however, that no such partition, between joint tenants or tenants in common, who hold or shall hold estate for life or years, with others holding equal or greater estates, shall prejudice any entitled to the reversion or remainder, after the death of the tenants for life, or after the expiration of the years. Sec. 2. That if partition be not made between joint tenants, the parts of those who die first shall not accrue to the survivor or survivors, but descend or pass by devise, and shall be subject to debts, dower, charges, etc., or transmissible to executors or administrators, and be considered to every intent and purpose, in the same view as if such deceased joint tenants ahd been tenants in common.’ Afterwards, on January 31, 1827, the general assembly passed ‘An act concerning conveyances of real property,’ the fifth section of which was as follows: ‘No estate in joint tenancy, in any lands, tenements or hereditaments, shall be held or claimed under any grant, devise or conveyance whatever, heretofore or hereafter made, other than to executors and trustees, unless the premises therein mentioned shall expressly be thereby declared to pass, not in tenancy in common, but in joint tenancy; and every such estate, other than to executors or trustees, (unless otherwise expressly declared as aforesaid,) shall be deemed to be a tenancy in common.’ In the Revised Statutes of 1845, section 2 of the act of 1821 appears as section 1 of chapter 56, entitled ‘Joint Rights and Obligations,’ while section 5 of the act of 1827 appears as section 5 of chapter 24, entitled ‘Conveyances,’ both chapters having been approved on the same day. In the Revised Statutes of 1874, section 2 of the act of 1821 again appears as section 1 of ‘An act to revise the law in relation to joint rights and obligations,’ approved February 25, 1874, and section 5 of the act of 1827 appears as section 5 of the ‘Act concerning conveyances,’ approved March 29, 1872, and in force July 1, 1872. Both sections have now been on the statute books concurrently since 1827, and both, since their original enactment, have been twice included, without change of phraseology, in general revisions of the statutes.

It seems plain that the act of 1821 undertook to deal only with joint tenancies and tenancies in common held by the tenants in their own rights, or in right of their wives. Such is the express limitation contained in the language of section 1, and that limitation undoubtedly was intended to apply to and control the entire act. No other tenancies were within the legislative contemplation. The act, therefore, had no application to estates held by executors, trustees, or others holding estates en autre droit. But as to estates held by the tenants in their own rights, or in right of their wives, whether held as joint tenants or tenants in common, the act gave the right to compel partition, and in cases of joint tenants, if partition was not made, the right of survivorship was taken away; and it was provided that the part of the tenant dying first should pass by descent or devise, and be subject to debts, dower, charges, etc., and be transmissible to executors or administrators, and be considered, to every intent and purpose, in the same view as if the deceased joint tenant had been a tenant in common. The effect of this statute, clearly, was to practically abolish joint tenancies, where the estates were held by the tenants in their own rights or in right of their wives, or, that which is the same thing, ot convert them into tenancies in common. The right of survivorship, which is and always has been the principal and distinguishing incident of joint tenancies, was taken away; and upon the death of the tenant, without having made partition, the estate was to be treated and considered, to every intent and purpose, as a tenancy in common.

The act of 1827 made no reference to that of 1821, but, as it...