Murphy v. Williamson

• Decision Date: 31 January 1877
• Parties: WILLIAM MURPHYv.MARY E. WILLIAMSON.
• Court: Illinois Supreme Court

85 Ill. 149

1877 WL 9507 (Ill.)

WILLIAM MURPHY

v.MARY E. WILLIAMSON.

Supreme Court of Illinois.

January Term, 1877.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Clark county; the Hon. O. L. DAVIS, Judge, presiding.

Messrs. DULANEY & GOLDEN, for the appellant.

Messrs. WILKIN & WILKIN, for the appellee.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was an action of ejectment, brought by Mary E. Williamson, in the circuit court of Clark county, against William Murphy, to recover certain lands situated in Clark county. The action was commenced on the 19th day of September, 1870. The trial was had at the December term, 1873, but the court held the case under advisement until the November term, 1875, when judgment was rendered in favor of the plaintiff, to reverse which the defendant appealed.

It is urged, as a ground of reversal, that the proof does not show defendant in the possession of the premises at the time the action was brought. The return of the sheriff on the summons did not show that the defendant was in the possession of the premises. In such a case, under the statute in force when the action was commenced, the plea of not guilty put in issue the possession. Gross' Stat. 1869, p. 235, sec. 12. The statute, however, which took effect July 1, 1872, and was in force when the cause was tried, established a different practice. Section 21 of the act declared, the plea of not guilty shall not put in issue the possession of the premises by the defendant, or that he claims title or interest in the premises; and section 22 provides, it shall not be necessary for the plaintiff to prove that the defendant was in possession of the premises, or claims title or interest therein, at the time of bringing the suit, or that the plaintiff demanded the possession of the premises, unless the defendant shall deny that he was in such possession, or denies title or interest therein, or that demand of possession was made, by special plea verified by affidavit. Laws of 1871-72, p. 372. This statute was in force when the cause was tried, and must control. It applied as well to actions pending as those that should be commenced after its passage. The legislature had the power to change the rules of practice in relation to the proofs and pleading in actions, and if the defendant, after the passage of the act, desired to present the issue in regard to the possession of the premises, he should have filed a plea as provided by the act. This he failed to do; and, under the issue, plaintiff was not bound to prove defendant in possession.

It is next urged, that the defendant was entitled to notice to quit, before action brought. Where possession of lands has been acquired by the assent of the owner and has been long continued, the holding of possession may not be wrongful until demand of possession has been made. A different rule, however, prevails where the entry was wrongful in its inception, or has become so afterwards. Chicago, Burlington and Quincy Railroad Co. v. Knox College, 34 Ill. 195. It no where appears, in this case, that the defendant entered with the consent of the plaintiff, or that the relation of landlord and tenant existed. On the other hand, the defendant claimed to own the fee and entitled to hold possession as such owner. Under such circumstances a notice to quit could not be required.

It appears from the evidence in this case, that John Handy died seized of the premises. Appellee was a daughter and heir. Thomas Handy, who was also an heir, filed a petition in the circuit court of Clark county, at the September term, 1850, for the purpose of dividing the lands of the deceased between the heirs. All the heirs of the said John Handy,...