Mettler v. Miller

• Decision Date: 31 October 1889
• Citation: 129 Ill. 630,22 N.E. 529
• Parties: METTLER v. MILLER.
• Court: Illinois Supreme Court

129 Ill. 630

22 N.E. 529

METTLER

v.MILLER.

Supreme Court of Illinois.

Oct. 31, 1889.

Appeal from circuit court, Ogle county.

O'Brien & O'Brien, for appellant.

M. D. Hathaway and Wm. Lathrop, for appellee.

BAKER, J.

This is ejectment brought on the 4th day of November, 1885, in the Ogle circuit court, against Jonathan T. Miller, appellee. In the suit, William J. Mettler, appellant, seeks to recover in fee an undivided one-fourth interest in lot 8, and in the north half of lot 7, both in block 6, in Palmer's addition to the town of Rochelle, formerly called Lane.

Appellant's title, as exhibited at the trial, is as follows: The premises in controversy are in the N. E. 1/4 of the S. W. 1/4 of section 24, township 40 N., range 1 E., of the third principal meridian. Sheldon Bartholomew bought a squatter's claim of said 40-acre tract of land about 1840, and settled thereon, and subsequently a patent for the land was issued to him by the United States. He died in 1846 intestate, and left him surviving his widow, Charlotte Bartholomew, and a daughter, Maria Bartholomew, his only heir at law. In 1847 the widow was married to one Powell, and lived with him as his wife until 1853, when he deserted her, and went to California, and they were divorced in 1856. The daughter, Maria Bartholomew, intermarried with Isaac Ross in March, 1851. The farm of Sheldon Bartholomew included not only said quarter-quarter section, but other lands adjoining, and he occupied such farm before and at the time of his death. His widow continued to live there until Powell left, in 1853, but her dower was never assigned to her. The daughter, Maria, and Isaac Ross, her husband, built a house near the house that had been occupied by her father, and he worked and managed a portion of the Bartholomew land. Maria Ross died in March, 1871, and left her surviving her husband, Isaac Ross, and as her heirs at law six children, Carrie Agnew, Jennie Bronson, Louisa Hutchinson, Sheldon B. Ross, Grace M. Horn, and George Ross. The grandmother of these children, Charlotte Powell, died in June, 1872. On February 14, 1884, Sheldon B. Ross and wife conveyed to appellant and one Porter E. Chamberlain, jointly, one-sixth of certain lands which included the 40-acre tract of land above mentioned; and by deed dated March 6, 1883, Grace M. Horn and husband conveyed to appellant one-sixth of the same lands. Under and by virtue of these two latter conveyances appellant claims to be the owner in fee of an undivided one-fourth of said lot 8 and north half of lot 7.

The case relied upon by appellee is as follows: Gilbert Palmer and wife, by warranty deed dated November 27, 1855, conveyed to Thomas D. Robertson the premises in question and other lands; said Robertson and wife, by quitclaim deed dated January 21, 1864, conveyed said premises and other lands to John Van Nortwick; Van Nortwick and wife, by their conveyance dated July 25, 1866, deeded and warranted the premises in controversy to Joseph Parker; said Parker and wife, by warranty deed dated November 29, 1869, conveyed said premises to James F. Miller and Jonathan T. Miller; and said James F. Miller and wife, on July 29, 1872, quitclaimed their right and interest in the same to Jonathan T. Miller, the appellee. By stipulation, it is also a part of appellee's case that Thomas D. Robertson paid all taxes assessed upon the property in suit from 1856 to 1863, both inclusive; that John Van Nortwick paid all taxes assessed thereon for 1865 and 1866; that Joseph Parker paid all taxes assessed against said premises for the years from 1866 to 1869, both inclusive; that James F. Miller and Jonathan T. Miller paid all taxes assessed against them from 1870 to 1872, both inclusive; and that Jonathan T. Miller paid all taxes assessed against them since the year 1872, and until the commencement of this suit; and also that said Robertson, Van Nortwick, Parker, James F. and Jonathan T. Miller, and appellee, at and during the times they so paid taxes, respectively and necessarily claimed to be the owners in fee of said premises. It also appears the lots were from 1856 to 1866, inclusive, vacant and unoccupied; that Parker entered into the actual possession of the premises early in [129 Ill. 637]1867, fenced them, set out trees thereon, and cultivated the land as a garden until he sold to the Millers. The Millers took and retained actual possession under their deed from Parker, and built a house thereon, and after James F. quitclaimed to Jonathan T. the latter had actual possession until after suit brought, and lived there and enlarged and built additions to the house.

The appellant also introduced in evidence, over the objections of appellee, five other conveyances and a plat, as follows: (1) A certified copy from the records of a patent from the United States to Sheldon Bartholomew, dated March 1, 1848, for N. E. 1/4 of S. W. 1/4 of section 24, township 40 N., range 1 E. (2) Deed from Isaac Ross, Maria Ross, and Charlotte Powell to Robert P. Lane, dated August 18, 1853, for all that part of said quarter-quarter section lying west of the Ottawa and Rockford road. (3) The plat of Palmer's addition to the town of Lane. (4) A deed from Robert P. Lane and wife to Gilbert D. Palmer, dated November 30, 1855, for block 6 and other property in said addition. (5) A warranty deed dated November 12, 1855, from Gilbert D. Palmer to William L. Porter for block 6 and other blocks in said addition. (6) A warranty deed from William L. Porter to Gilbert D. Palmer for lots 7 and 8 and other lots in said block 6 in said addition. Said patent and said several conveyances were duly recorded in Ogle county prior to the delivery of the several deeds relied on by appellee.

In respect to the title of appellant and his right of recovery, and leaving out of consideration, for the present, the defenses of appellee based on sections 6 and 7 of the present limitation law, commonly known as the act of 1839, we decide the following points:

1. Upon the death of Sheldon Bartholomew the title to the land here in question vested in his only child and heir, Maria, subject to the dower of the widow. The dower never having been assigned, the latter had her quarantine rights in the premises, but upon the marriage of Maria to Isaac Ross, and the birth of a child born alive as the result of such marriage, this quarantine right did not prevent Isaac Ross from taking an estate by the curtesy initiate. The possession of the widow, under the statutory right to retain possession of the dwelling-house and plantation thereto belonging until her dower was assigned, was not adverse to the title of the heir upon whom the law cast the fee immediately upon the death of the ancestor, and did not affect the right to curtesy. Musham v. Musham, 87 Ill. 80;Reynolds v. McCurry, 100 Ill. 356;Doane v. Walker, 101 Ill. 628;Holman v. Gill, 107 Ill. 467;Stephens v. Hume, 25 Mo. 349.

2. It is uncertain from the testimony whether Ross, the husband, had, during coverture, the actual possession, pedis possessio, of the particular part of the land which is here in controversy, either by working it with his own team and implements, and on his own account, or jointly with Powell, as tenants in common. It does appear, however, that the remote grantees of Isaac Ross under the deed of July 19, 1853, had actual possession, and such possession was virtually his possession. If an entry is made upon the land of the wife by the husband, or by another person under him and by his authority, the same effect is produced, and the right to hold as tenant by the curtesy is the same. If a sale is made by the husband, and his immediate or remote grantee takes possession under the purchase, it is done by authority of the husband, and it perfects his title as tenant by the curtesy, and the vendee has a right to the land during the life-time of the husband. Vanarsdall v. Fauntleroy's Heirs, 7 B. Mon. 401. But we do not understand that by the law of this state a seisin in fact, as distinguished from a seisin in law, was, prior to the time the estate of curtesy was abolished by statute, necessary in order to vest an estate by the curtesy. The rule that only seisin in fact during coverture would entitle the husband to curtesy was never strictly adhered to either in Englandor in this country. In Davis v. Mason, 1 Pet. 503, and numerous other cases, it was held that the rigid rule of the common law, that required actual possession as a condition precedent to curtesy, did not apply to the wild, vacant, or unoccupied lands of the wife; and from the testimony in this case it is evident the land here involved was either cultivated and occupied by Ross alone, or jointly with Powell, or else was at that time vacant and unoccupied. But, be this as it may, the doctrine requiring such actual possession was based on the common-law rule or maxim seisina facit stipitem, and that was completely abrogated long ago by our statutes. By that which is now the first section of our conveyance act, livery of seisin was abolished; by that which is now the first section of the statute of descents, the real estate of intestate proprietors descended as provided for in the statute, without regard to actual seisin; and by that which is now the first section of the statute of wills, power was given to persons of requisite age and capacity to devise all their estate, right, title, and interest in possession, reversion, or remainder, in and to any lands, tenements, hereditaments, or annuities or rents, charged upon or issuing out of them, by will. These several statutes of conveyance, descents, and wills operated with like effect as the statute of user operated, in regard to which Blackstone said: ‘The party is at once put into possession by an act of parliamentary magic.’ See Shackelton v. Sebree, 86 Ill. 616. When the maxim above mentioned prevailed, there was reason in the requirement that the husband should be held to make an actual...