Pickerell v. Morss

• Decision Date: 17 November 1880
• Citation: 1880 WL 10179,97 Ill. 220
• Parties: BOOKER PICKERELLv.CAROLINE MORSS et al.
• Court: Illinois Supreme Court

97 Ill. 220

1880 WL 10179 (Ill.)

BOOKER PICKERELL

v.CAROLINE MORSS et al.

Supreme Court of Illinois.

Filed at Ottawa Nov. 17, 1880.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Knox county; the Hon. JOHN J. GLENN, Judge, presiding.

William Morris, on the 12th day of August, 1847, conveyed, by deed, the remainder, after the termination of his life estate, (which was expressly reserved,) in certain lands in Knox county, to his children, Canada, Jane, Josiah, Hiram, Rhoda, Margaret and Mahulda. Mahulda died intestate in 1854. From the date of the deed until the spring or summer of 1866, said William Morris, together with his wife and perhaps a portion of the grantees, then constituting a part of his family, continued to occupy the premises. On the first day of March, 1865, Canada Morris conveyed, by deed, his interest in the lands to Benjamin Morss.

On the 8th day of January, 1866, said William Morris executed a lease of the lands to H. H. Shelton, for the yearly rental of $80.

On the 14th day of March, 1866, Hiram Morris conveyed, by deed, his interest in the property to Benjamin Morss.

On the 23d day of October, 1866, said Hiram Morris, by another deed, purported to convey his interest in the property to H. H. Shelton.

H. H. Shelton also obtained a deed of Josiah Morris' interest, and, on the 23d day of August, 1867, he conveyed, by deed, his interest in the property to William Bolding. William Bolding, on the 2d day of April, 1870, conveyed his interest in the property to Booker Pickerell.

Pickerell also obtained a deed conveying to him the interest of Rhoda Freemont, nee Morris.

On the 12th day of August, 1871, the said William Morris and his wife conveyed to said Booker Pickerell all the interest they then had, or thereafter might acquire by inheritance, in the land.

On the 22d day of January, 1878, Benjamin Morss conveyed, by deed of quitclaim, his interest in the property to his wife, Caroline Morss. William Morris having died, petition for partition was filed by Caroline Morss, claiming to be the owner of the interests of Hiram Morris and Canada Morris in the lands. Booker Pickerell, in his answer, claimed to own the interest of Hiram Morris. Subsequently, a conservator having been appointed for Canada Morris, he obtained leave to appear and file a cross-bill to set aside the deed of conveyance from Canada Morris to Benjamin Morss, on the ground of mental imbecility, and incapacity to convey.

The court below, on the original petition, decreed Caroline Morss was entitled to the interest of Hiram Morris; but, on the cross-bill, the decree was in accordance with the prayer thereof, setting aside the deed of conveyance from Canada to Benjamin Morss.

The record is brought here by the appeal of Booker Pickerell, who assigns for error the decree on the original petition, and Caroline Morss assigns for cross-error the decree on the cross-bill.

Messrs. WILLIAMS & LAWRENCE, and Mr. L. DOUGLASS, for the appellant:

The possession of Shelton was notice to subsequent purchasers of whatever title he had, legal or equitable. Rupert et al. v. Mark, 15 Ill. 540; Brown v. Welch, 18 Ill. 346; Bone v. Childs, 10 Pet. 211.

The payment of the purchase money and taking possession of the land bought by Shelton took the case out of the Statute of Frauds. Fitzsimmons v. Allen, 39 Ill. 440; Temple v. Johnson, 71 Id. 13.

It is no answer to say because of the life estate he could not take possession, when the proof is he did, and then Jan. 8, 1866, united the life estate. Shelton took all the possession possible under the circumstances.

Mr. F. S. MURPHY, for the appellees:

The possession of Shelton was taken under a lease of the tenant for life, and his improvements being only what a prudent tenant would make, are also referable to his claim as a tenant. He could not hold possession adversely without first surrendering the possession to his landlord. Rigg v. Cook, 4 Gilm. 351; Lowe v. Emerson, 48 Ill. 163; Zellis, Lessee v. Eckert, 4 How. 295.

To take a parol purchase of land out of the Statute of Frauds, it is not sufficient that the party was previously in possession under a lease or in any other manner, but it must affirmatively appear he got possession under the agreement relied on and in part performance of the same, and it must appear that the improvements were made under the contract. Fleming v. Carter, 70 Ill. 286; Fitzsimmons v. Allen et al. 39 Id. 440; Temple v. Johnson, 71 Id. 13; Story's Eq. sec. 764; Wood et al. v. Thornly et al. 58 Ill. 464.

There could be no merger of the life estate, as Shelton did not own it, but was a mere tenant of it.

Persons have the capacity to contract, and the exception is their want of capacity. This exception, therefore, must be made out, and a capacity and competency will be held, not only when there is no evidence and no rule against it, but when the evidence or the rule leaves it in doubt. 2 Parsons on Contracts, 573; McCarty v. Kernan, 86 Ill. 291.

This court is very reluctant to set aside a deed on the ground of incompetency and fraud, and will not do so unless the evidence is very positive and clear. Baldwin v. Dunton et al. 40 Ill. 189; Lindsey et al. v. Lindsey, 50 Id. 79; Searle v. Galbraith, 73 Id. 269; Sheldon v. Harding, 44 Id. 60.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

The deed of Hiram Morris to Benjamin Morss is conceded to be prior in date of execution and of record to the deed of Hiram Morris to H. H. Shelton, but it is claimed that there was a contract between Hiram and Shelton prior to the execution of the deed to Morss, whereby Hiram sold and agreed to convey to Shelton, and that pursuant thereto, Shelton paid Hiram the price agreed to be paid, and took possession of the land, and made valuable improvements thereon.

The evidence is conflicting as to the time when Shelton did the acts claimed as a taking of possession, and we strongly incline to the opinion that the fair preponderance is, that it was not until the spring of 1866, after Shelton had obtained the lease of the land from William Morris.

William Morris was in the actual possession of the property prior to that time, and since it is not pretended that Shelton ever made any entry upon the land in hostility to that possession, his entry must have been subordinate thereto. He says: “I held possession of the land by the purchase of Hiram and Josiah's interest, and by the promise of the three heirs that they would sell to me their interest, and by a written contract with the old man Morris that I would pay him $80 a year for his interest in all the land, except five acres in the south-west corner,”--which was fenced off to him.

It is quite clear that he did not, in this answer, distinguish between the legal interests in the land and the right to immediate possession. William Morris, until the termination of his life estate, was entitled to the sole possession of the land. The right to possession did not rest in his grantees until his prior life estate terminated, and all they could, in this regard, convey to Shelton was, hence, the right to enter upon the lands after the termination of the life estate of William Morris. Since, therefore, it is not pretended that William Morris' life estate was terminated until long after the execution of the deed by Hiram to Benjamin Morss, it is impossible that Shelton could have acquired a lawful right to possession by virtue of any contract he may have had with Hiram.

We have often held, following the well settled common law rule, that where possession is relied on as part performance of a contract to take it out of the Statute of Frauds, it must affirmatively appear that the party got possession under the agreement relied on, and in part...