Noyes v. Heffernan

• Decision Date: 30 October 1894
• Citation: 153 Ill. 339,38 N.E. 571
• Parties: NOYES v. HEFFERNAN.
• Court: Illinois Supreme Court

153 Ill. 339

38 N.E. 571

NOYES

v.HEFFERNAN.¹

Supreme Court of Illinois.

Oct. 30, 1894.

Error to circuit court, Coles county; Francis M. Wright, Judge.

Ejectment by Rufus Noyes against James Heffernan. Defendant obtained judgment. Plaintiff brings error. Affirmed.

J. W. Craig and L. C. Henley, for plaintiff in error.

Chas. Bennett, F. M. Phipps, and J. F. Hughes, for defendant in error.

CRAIG, J.

This was an action of ejectment brought by Rufus Noyes against James Heffernan to recover a part of the N. 1/2 of the S. E. 1/4 of section 14, township 12 N., range 7, in Coles county; said tract more particularly described in the declaration, and being 34 feet front and 140 feet deep. The parties, by agreement, waived a jury, and a trial was had before the court, resulting in a judgment in favor of the defendant. For the purpose of reversing the judgment, the plaintiff appealed.

The plaintiff claimed a regular chain of title from the government to himself, while, on the other hand, the defendant claimed 20 years' actual adverse possession of the premises as a bar to the action. Conceding that plaintiff established a chain of title to the land in controversy from the government to himself, he was not entitled to recover, if the defendant held the possession of the land adversely for a period of 20 years before the action was brought, claiming title. For the purpose of establishing an actual possession of 20 years, the defendant testified: ‘I am defendant in this cause. In April, 1860, took possession of the strip of ground in controversy, it being neutral land, and built a small house, 12x16 feet, on the same, and fenced it in,-being 50 feet front, and 140 feet back to the alley, south,-and occupied it as a dwelling house and shop. I planted it in garden the next spring, and every year thereafter, except while I was in Windsor, Shelby county, Illinois. The next spring I built an addition to the house, on the west, of 8x16 feet. In the spring of 1863 I built another addition, on the south side of said building, of 12x24 feet. I lived there with my family until 1875, when I moved to Windsor, Shelby county, Illinois, and left the property in the hands of Mr. Fisher, of Mattoon, as my agent, to rent it for me until I moved back to it, in October, 1882. The only time it was idle was about two weeks, while it was being repaired. In 1884 I got a notice that it had been sold for taxes against one Russell from 1872 to 1883. I then redeemed it by paying up all the back taxes, and have paid the taxes on same since, except, perhaps, once or twice. When I came back to property in 1882, I built the little addition on the west, of 10 x14 feet, in which I moved my shoe shop. I married in August, 1860, and my four children were born there; my wife died there; and I am still living there with my youngest daughter, who is keeping house for me.’ On cross-examination he further testified: ‘I always claimed it [the premises in controversy] as mine from the time I took possession of it until the present time, and still claim it.’ F. M. Phipps testifies on behalf of defendant: ‘That in 1884 or 1885 I moved into property just across the alley south of property in question, and lived there four or five years. When I moved there, Mr. Heffernan had the lot, fenced it with a fence consisting of boards (planks and posts), which had the appearance, from its decayed condition, of having been there a great many years. The hitching rack spoken of was to the west of, and some few feet from the west line of, the fence around the property in question. Heffernanalwaysput the rear portion of these premises in garden every spring while I lived near it.’ For the purpose of rebutting the evidence of the...